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Justice Marshall

dissenting

Touche Ross & Co. v. Redington

https://www.courtlistener.com/opinion/110112/touche-ross-co-v-redington/

https://www.courtlistener.com/api/rest/v3/clusters/110112/

1978-128

In determining whether to imply a private cause of action for damages under a statute that does not expressly authorize such a remedy, this Court has considered four factors: "First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,'—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Cort v. Ash, 422 U.S. 66, 78 (1975) (citations omitted). Applying these factors, I believe respondents are entitled to bring an action against accountants who have allegedly breached duties imposed under § 17 (a) of the Securities Exchange Act of 1934, 15 U.S. C. § 78q (a). Since respondents seek relief on behalf of brokerage firm customers, the first inquiry is whether those customers are the intended beneficiaries of the regulatory scheme. Under § 17 (a), brokers must file such reports "as the [SEC], by rule, prescribes as necessary or appropriate . . . for the protection of investors." 15 U.S. C. § 78q (a) (1) (emphasis added). Cf. *581 J. I. Case Co. v. Borak, 377 U.S. 426, 432 (1964). Pursuant to this authority, the SEC requires brokers to provide a battery of financial statements, and directs independent accountants to verify the brokers' reports. 17 CFR § 240.17a-5 (1978); see also ante, at 563-564, n. 3. The purpose of these requirements, as the Commission has consistently emphasized, is to enable regulators to "monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers." Ante, at 570.[1] In addition, at the time of the events giving rise to this suit, the rules implementing § 17 mandated that brokers disclose to customers whether an accountant's audit had revealed any "material inadequacies" in financial procedures. 37 Fed. Reg. 14608 (1972). Thus, it is clear that brokerage firm customers are the "favored wards" of § 17, 592 F.2d 617, 623 (CA2 1978), and that the initial test of Cort v. Ash is satisfied here.[2] With respect to the second Cort factor, the legislative history does not explicitly address the availability of a damages remedy under § 17. The majority, however, discerns an intent to deny private remedies from two aspects of the statutory scheme. Because unrelated sections in the 1934 Act expressly grant private rights of action for violation of their terms, the Court suggests that Congress would have made such provision under § 17 had it wished to do so. But as we noted recently in Cannon v. University of Chicago, 441 U. S. *582 677, 711 (1979), "that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section." The Court finds a further indication of congressional intent in the interaction between §§ 17 and 18 of the 1934 Act. Section 18 (a), 15 U.S. C. § 78r (a), affords an express remedy for misstatements in reports filed with the Commission, apparently including reports required by § 17, but limits relief to purchasers or sellers of securities whose price was affected by the misstatement. In light of this limitation, the majority reasons, we should not imply a remedy under § 17 which embraces a broader class of plaintiffs. However, § 18 pertains to investors who are injured in the course of securities transactions, while § 17 is concerned exclusively with brokerage firm customers who may be injured by a broker's insolvency. Given this divergence in focus, § 18 does not reflect an intent to restrict the remedies available under § 17. Indeed, since false reports regarding a broker's financial condition would not affect the price of securities held by the broker's customers, § 18 would provide these persons with no remedy at all. I am unwilling to assume that "Congress simultaneously sought to protect to class and deprived [it] of the means of protection." 592 F.2d, at 623. A cause of action for damages here is also consistent with the underlying purposes of the legislative scheme. Because the SEC lacks the resources to audit all the documents that brokers file, it must rely on certification by accountants. See J. I. Case Co. v. Borak, supra, at 432; Allen v. State Board of Elections, 393 U.S. 544, 556 (1969); see also 592 F.2d, at 623 n. 12. Implying a private right of action would both facilitate the SEC's enforcement efforts and provide an incentive for accountants to perform their certification functions properly. Finally, enforcement of the 1934 Act's reporting provisions is plainly not a matter of traditional state concern, but rather *583 relates solely to the effectiveness of federal statutory requirements. And, as the Court of Appeals held, since the problems caused by broker insolvencies are national in scope, so too must be the standards governing financial disclosure. Id., at 623. In sum, straightforward application of the four Cort factors compels affirmance of the judgment below. Because the Court misapplies this precedent and disregards the evident purpose of § 17, I respectfully dissent.

In determining whether to imply a private cause of action for damages under a statute that does not expressly authorize such a remedy, this Court has considered four factors: "First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,'—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Applying these factors, I believe respondents are entitled to bring an action against accountants who have allegedly breached duties imposed under 17 (a) of the Securities Exchange Act of 1934, 15 U.S. C. q (a). Since respondents seek relief on behalf of brokerage firm customers, the first inquiry is whether those customers are the intended beneficiaries of the regulatory scheme. Under 17 (a), brokers must file such reports "as the [SEC], by rule, prescribes as necessary or appropriate for the protection of investors." 15 U.S. C. q (a) (1) (emphasis added). Cf. *581 J. I. Case Pursuant to this authority, the SEC requires brokers to provide a battery of financial statements, and directs independent accountants to verify the brokers' reports. 17 CFR 240.17a-5 (19); see ante, at 563-564, n. 3. The purpose of these requirements, as the Commission has consistently emphasized, is to enable regulators to "monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers." Ante, at 570.[1] In addition, at the time of the events giving rise to this suit, the rules implementing 17 mandated that brokers disclose to customers whether an accountant's audit had revealed any "material inadequacies" in financial procedures. (1972). Thus, it is clear that brokerage firm customers are the "favored wards" of 17, (CA2 19), and that the initial test of is satisfied here.[2] With respect to the second Cort factor, the legislative history does not explicitly address the availability of a damages remedy under 17. The majority, however, discerns an intent to deny private remedies from two aspects of the statutory scheme. Because unrelated sections in the 1934 Act expressly grant private rights of action for violation of their terms, the Court suggests that Congress would have made such provision under 17 had it wished to do so. But as we noted recently in Cannon v. University of Chicago, 441 U. S. *582 677, 711 (1979), "that other provisions of a complex statutory scheme create express remedies has not been accepted as a sufficient reason for refusing to imply an otherwise appropriate remedy under a separate section." The Court finds a further indication of congressional intent in the interaction between 17 and 18 of the 1934 Act. Section 18 (a), 15 U.S. C. r (a), affords an express remedy for misstatements in reports filed with the Commission, apparently including reports required by 17, but limits relief to purchasers or sellers of securities whose price was affected by the misstatement. In light of this limitation, the majority reasons, we should not imply a remedy under 17 which embraces a broader class of plaintiffs. However, 18 pertains to investors who are injured in the course of securities transactions, while 17 is concerned exclusively with brokerage firm customers who may be injured by a broker's insolvency. Given this divergence in focus, 18 does not reflect an intent to restrict the remedies available under 17. Indeed, since false reports regarding a broker's financial condition would not affect the price of securities held by the broker's customers, 18 would provide these persons with no remedy at all. I am unwilling to assume that "Congress simultaneously sought to protect to class and deprived [it] of the means of protection." 592 F.2d, at A cause of action for damages here is consistent with the underlying purposes of the legislative scheme. Because the SEC lacks the resources to audit all the documents that brokers file, it must rely on certification by accountants. See J. I. Case at ; ; see 592 F.2d, at n. 12. Implying a private right of action would both facilitate the SEC's enforcement efforts and provide an incentive for accountants to perform their certification functions properly. Finally, enforcement of the 1934 Act's reporting provisions is plainly not a matter of traditional state concern, but rather *583 relates solely to the effectiveness of federal statutory requirements. And, as the Court of Appeals held, since the problems caused by broker insolvencies are national in scope, so too must be the standards governing financial disclosure. at In sum, straightforward application of the four Cort factors compels affirmance of the judgment below. Because the Court misapplies this precedent and disregards the evident purpose of 17, I respectfully dissent.

Justice Black

majority

Perez v. Ledesma

https://www.courtlistener.com/opinion/108266/perez-v-ledesma/

https://www.courtlistener.com/api/rest/v3/clusters/108266/

1970-038

Given our decisions today in No. 2, Younger v. Harris, ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, in which we have determined when it is appropriate for a federal court to intervene in the administration of a State's criminal laws, the disposition of this case should not be difficult. I Ledesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they displayed for sale allegedly obscene magazines, books, and playing cards. As a result of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La. Rev. Stat. Ann. § 14:106 (Supp. 1970), and St. Bernard Parish Ordinance 21-60. After the state court proceedings had commenced by the filing of the informations, appellees instituted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seized materials. Although the three-judge court declined to issue an injunction against the pending *84 or any future prosecutions, it did enter a suppression order and require the return of all the seized material to the appellees. 304 F. Supp. 662, 667-670 (1969). The local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of jurisdiction to the hearing on the merits. 399 U.S. 924 (1970).[1] It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution. "In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials, the prosecutions should be effectively terminated." 304 F. Supp., at 670. (Emphasis added.) Moreover, the District Court retained jurisdiction "for the purposes of hereafter entering any orders necessary to enforce" its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in Younger v. Harris, supra, such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see Stefanelli v. Minard, 342 *85 U. S. 117 (1951), subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. See Younger v. Harris, supra; Ex Parte Young, 209 U.S. 123 (1908). There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State's criminal laws. We therefore hold that the three-judge court improperly intruded into the State's own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seized materials. II After crippling Louisiana's ability to enforce its criminal statute against Ledesma, the three-judge court expressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that "it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance," the court nevertheless seized the "opportunity to express its views on the constitutionality of the ordinance." 304 F. Supp. 662, 670 n. 31 (1969). Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court's view and declared the parish ordinance invalid. There is considerable question concerning *86 the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case.[2] III We are, however, unable to review the decision concerning the local ordinance because this Court has no jurisdiction to review on direct appeal the validity of a declaratory judgment against a local ordinance, such as St. Bernard Parish Ordinance 21-60. Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would have been acting in the capacity of a single-judge court. We held in Moody v. Flowers, 387 U.S. 97 (1967), that a three-judge court was not properly convened to consider the constitutionality of a statute of only local application, similar to a local ordinance. Under 28 U.S. C. § 1253 we have jurisdiction to consider on direct appeal only those civil actions "required. . . to be heard and determined" by a three-judge court. Since the constitutionality of this parish ordinance was not "required . . . to be heard and determined" by a three-judge panel, there is no jurisdiction in this Court to review that question. The fact that a three-judge court was properly convened in this case to consider the injunctive relief requested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent jurisdictional *87 base. Even where a three-judge court is properly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them.[3] See Public Service Comm'n v. Brashear Freight Lines, 306 U.S. 204 (1939). In this case, the order granting the declaratory judgment was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge. The three-judge court stated: "The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith." 304 F. Supp., at 670 n. 31. (Emphasis added.) The last clause of the quoted sentence indicates what, under Moody v. Flowers, must be the case: The decision granting declaratory relief against the Parish of St. Bernard Ordinance 21-60 was the decision of a single federal judge. This fact is confirmed by the orders entered by the two courts. The three-judge court entered the following order at the end of its opinion. "Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing: "1. That all seized materials be returned, instanter, to those from whom they were seized, *88 "2. That said materials be suppressed as evidence in any pending or future prosecutions of the plaintiffs, "3. That the preliminary and permanent injunctions prayed for be denied, and "4. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." The order of the single-judge District Court is as follows: "For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: "1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. "2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." 304 F. Supp., at 670-671. The fact that the clerk of the District Court merged these orders into one judgment does not confer jurisdiction upon this Court. In the first place, our jurisdiction cannot be made to turn on an inadvertent error of a court clerk. Second, the jurisdictional statute by its own terms grants a direct appeal from "an order granting or denying" an injunction. 28 U.S. C. § 1253. (Emphasis added.) Since the order entered by the three-judge court omits any reference to declaratory relief, the discussion of such relief in the court's opinion is dictum. The judgment of the court below is reversed insofar as it grants injunctive relief. In all other respects the judgment is vacated and the case remanded to the United States District Court with instructions to enter a fresh decree from which the parties may take an appeal to the Court of Appeals for the Fifth Circuit if they so desire. It is so ordered. *89 MR. JUSTICE STEWART, with whom MR.

Given our decisions today in No. 2, Younger v. ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, in which we have determined when it is appropriate for a federal court to intervene in the administration of a State's criminal laws, the disposition of this case should not be difficult. I Ledesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they displayed for sale allegedly obscene magazines, books, and playing cards. As a result of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La. Rev. Stat. Ann. 14:106 and St. Bernard Parish Ordinance 21-60. After the state court proceedings had commenced by the filing of the informations, appellees instituted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seized materials. Although the three-judge court declined to issue an injunction against the pending *84 or any future prosecutions, it did enter a suppression order and require the return of all the seized material to the appellees. The local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of jurisdiction to the hearing on the merits.[1] It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution. "In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials, the prosecutions should be effectively terminated." (Emphasis added.) Moreover, the District Court retained jurisdiction "for the purposes of hereafter entering any orders necessary to enforce" its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in Younger v. such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. See Younger v. Ex Parte Young, There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State's criminal laws. We therefore hold that the three-judge court improperly intruded into the State's own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seized materials. II After crippling Louisiana's ability to enforce its criminal statute against Ledesma, the three-judge court expressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that "it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance," the court nevertheless seized the "opportunity to express its views on the constitutionality of the ordinance." Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court's view and declared the parish ordinance invalid. There is considerable question concerning *86 the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case.[2] III We are, however, unable to review the decision concerning the local ordinance because this Court has no jurisdiction to review on direct appeal the validity of a declaratory judgment against a local ordinance, such as St. Bernard Parish Ordinance 21-60. Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would have been acting in the capacity of a single-judge court. We held in that a three-judge court was not properly convened to consider the constitutionality of a statute of only local application, similar to a local ordinance. Under 28 U.S. C. 1253 we have jurisdiction to consider on direct appeal only those civil actions "required. to be heard and determined" by a three-judge court. Since the constitutionality of this parish ordinance was not "required to be heard and determined" by a three-judge panel, there is no jurisdiction in this Court to review that question. The fact that a three-judge court was properly convened in this case to consider the injunctive relief requested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent jurisdictional *87 base. Even where a three-judge court is properly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them.[3] See Public Service In this case, the order granting the declaratory judgment was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge. The three-judge court stated: "The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith." n. 31. (Emphasis added.) The last clause of the quoted sentence indicates what, under must be the case: The decision granting declaratory relief against the Parish of St. Bernard Ordinance 21-60 was the decision of a single federal judge. This fact is confirmed by the orders entered by the two courts. The three-judge court entered the following order at the end of its opinion. "Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing: "1. That all seized materials be returned, instanter, to those from whom they were seized, *88 "2. That said materials be suppressed as evidence in any pending or future prosecutions of the plaintiffs, "3. That the preliminary and permanent injunctions prayed for be denied, and "4. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." The order of the single-judge District Court is as follows: "For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: "1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. "2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." -671. The fact that the clerk of the District Court merged these orders into one judgment does not confer jurisdiction upon this Court. In the first place, our jurisdiction cannot be made to turn on an inadvertent error of a court clerk. Second, the jurisdictional statute by its own terms grants a direct appeal from "an order granting or denying" an injunction. 28 U.S. C. 1253. (Emphasis added.) Since the order entered by the three-judge court omits any reference to declaratory relief, the discussion of such relief in the court's opinion is dictum. The judgment of the court below is reversed insofar as it grants injunctive relief. In all other respects the judgment is vacated and the case remanded to the United States District Court with instructions to enter a fresh decree from which the parties may take an appeal to the Court of Appeals for the Fifth Circuit if they so desire. It is so ordered. *89 MR. JUSTICE STEWART, with whom MR.

Justice Thomas

majority

National Cable & Telecommunications Assn. v. Brand X Internet Services

https://www.courtlistener.com/opinion/799969/national-cable-telecommunications-assn-v-brand-x-internet-services/

https://www.courtlistener.com/api/rest/v3/clusters/799969/

2004-080

Title II of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S. C. § 151 et seq., subjects all providers of "telecommunications servic[e]" to mandatory common-carrier regulation, § 153(44). In the order under review, the *974 Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide "telecommunications servic[e]" as the Communications Act defines that term, and hence are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the Administrative Procedure Act, 5 U.S. C. § 551 et seq. We hold that it is. I The traditional means by which consumers in the United States access the network of interconnected computers that make up the Internet is through "dial-up" connections provided over local telephone facilities. See 345 F.3d 1120, 1123-1124 (CA9 2003) (cases below); In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798, 4802-4803, ¶ 9 (2002) (hereinafter Declaratory Ruling). Using these connections, consumers access the Internet by making calls with computer modems through the telephone wires owned by local phone companies. See Verizon Communications Inc. v. FCC, 535 U.S. 467, 489-490 (2002) (describing the physical structure of a local telephone exchange). Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by providing a physical connection, but also by offering consumers the ability to translate raw Internet data into information they may both view on their personal computers and transmit to other computers connected to the Internet. See In re Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11501, 11531, ¶ 63 (1998) (hereinafter Universal Service Report or Report); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law 988 (2d ed. 1999) (hereinafter Huber); 345 F. 3d, at 1123-1124. Technological limitations of local telephone wires, however, retard the speed at which data from the Internet may be transmitted *975 through end users' dial-up connections. Dial-up connections are therefore known as "narrowband," or slower speed, connections. "Broadband" Internet service, by contrast, transmits data at much higher speeds. There are two principal kinds of broadband Internet service: cable modem service and Digital Subscriber Line (DSL) service. Cable modem service transmits data between the Internet and users' computers via the network of television cable lines owned by cable companies. See id., at 1124. DSL service provides high-speed access using the local telephone wires owned by local telephone companies. See WorldCom, Inc. v. FCC, 246 F.3d 690, 692 (CADC 2001) (describing DSL technology). Cable companies and telephone companies can either provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease their transmission facilities to independent ISPs that then use the facilities to provide consumers with Internet access. Other ways of transmitting high-speed Internet data into homes, including terrestrial and satellite-based wireless networks, are also emerging. Declaratory Ruling 4802, ¶ 6. II At issue in these cases is the proper regulatory classification under the Communications Act of broadband cable Internet service. The Act, as amended by the Telecommunications Act of 1996, 110 Stat. 56, defines two categories of regulated entities relevant to these cases: telecommunications carriers and information-service providers. The Act regulates telecommunications carriers, but not information service providers, as common carriers. Telecommunications carriers, for example, must charge just and reasonable, nondiscriminatory rates to their customers, 47 U.S. C. §§ 201-209, design their systems so that other carriers can interconnect with their communications networks, § 251(a)(1), and contribute to the federal "universal service" fund, § 254(d). *976 These provisions are mandatory, but the Commission must forbear from applying them if it determines that the public interest requires it. §§ 160(a), (b). Information-service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications, see §§ 151-161. These two statutory classifications originated in the late 1970's, as the Commission developed rules to regulate data-processing services offered over telephone wires. That regime, the "Computer II" rules, distinguished between "basic" service (like telephone service) and "enhanced" service (computer-processing service offered over telephone lines). In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77 F. C. C. 2d 384, 417-423, ¶¶ 86-101 (1980) (hereinafter Computer II Order). The Computer II rules defined both basic and enhanced services by reference to how the consumer perceives the service being offered. In particular, the Commission defined "basic service" as "a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information." Id., at 420, ¶ 96. By "pure" or "transparent" transmission, the Commission meant a communications path that enabled the consumer to transmit an ordinary-language message to another point, with no computer processing or storage of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting it over the network— such as via a telephone or a facsimile. Id., at 419-420, ¶¶ 94-95. Basic service was subject to common-carrier regulation. Id., at 428, ¶ 114. "[E]nhanced service," however, was service in which "computer processing applications [were] used to act on the *977 content, code, protocol, and other aspects of the subscriber's information," such as voice and data storage services, id., at 420-421, ¶ 97, as well as "protocol conversion" (i. e., ability to communicate between networks that employ different data-transmission formats), id., at 421-422, ¶ 99. By contrast to basic service, the Commission decided not to subject providers of enhanced service, even enhanced service offered via transmission wires, to Title II common-carrier regulation. Id., at 428-432, ¶¶ 115-123. The Commission explained that it was unwise to subject enhanced service to common-carrier regulation given the "fast-moving, competitive market" in which they were offered. Id., at 434, ¶ 129. The definitions of the terms "telecommunications service" and "information service" established by the 1996 Act are similar to the Computer II basic- and enhanced-service classifications. "Telecommunications service"—the analog to basic service—is "the offering of telecommunications for a fee directly to the public . . . regardless of the facilities used." 47 U.S. C. § 153(46). "Telecommunications" is "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." § 153(43). "Telecommunications carrier[s]"—those subjected to mandatory Title II common-carrier regulation—are defined as "provider[s] of telecommunications services." § 153(44). And "information service"—the analog to enhanced service—is "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications...." § 153(20). In September 2000, the Commission initiated a rulemaking proceeding to, among other things, apply these classifications to cable companies that offer broadband Internet service directly to consumers. In March 2002, that rulemaking culminated in the Declaratory Ruling under review in these cases. In the Declaratory Ruling, the Commission concluded *978 that broadband Internet service provided by cable companies is an "information service" but not a "telecommunications service" under the Act, and therefore not subject to mandatory Title II common-carrier regulation. In support of this conclusion, the Commission relied heavily on its Universal Service Report. See Declaratory Ruling 4821-4822, ¶¶ 36-37 (citing Universal Service Report). The Universal Service Report classified "non-facilities-based" ISPs— those that do not own the transmission facilities they use to connect the end user to the Internet—solely as information-service providers. See Universal Service Report 11533, ¶ 67. Unlike those ISPs, cable companies own the cable lines they use to provide Internet access. Nevertheless, in the Declaratory Ruling, the Commission found no basis in the statutory definitions for treating cable companies differently from non-facilities-based ISPs: Both offer "a single, integrated service that enables the subscriber to utilize Internet access service . . . and to realize the benefits of a comprehensive service offering." Declaratory Ruling 4823, ¶ 38. Because Internet access provides a capability for manipulating and storing information, the Commission concluded that it was an information service. Ibid. The integrated nature of Internet access and the high-speed wire used to provide Internet access led the Commission to conclude that cable companies providing Internet access are not telecommunications providers. This conclusion, the Commission reasoned, followed from the logic of the Universal Service Report. The Report had concluded that, though Internet service "involves data transport elements" because "an Internet access provider must enable the movement of information between customers' own computers and distant computers with which those customers seek to interact," it also "offers end users information-service capabilities inextricably intertwined with data transport." Universal Service Report 11539-11540, ¶ 80. ISPs, therefore, were not "offering . . . telecommunications . . . directly to the public," *979 § 153(46), and so were not properly classified as telecommunications carriers, see id., at 11540, ¶ 81. In other words, the Commission reasoned that consumers use their cable modems not to transmit information "transparently," such as by using a telephone, but instead to obtain Internet access. The Commission applied this same reasoning to cable companies offering broadband Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not "offe[r] telecommunications service to the end user, but rather . . . merely us[e] telecommunications to provide end users with cable modem service." Declaratory Ruling 4824, ¶ 41. Though the Commission declined to apply mandatory Title II common-carrier regulation to cable companies, it invited comment on whether under its Title I jurisdiction it should require cable companies to offer other ISPs access to their facilities on common-carrier terms. Id., at 4839, ¶ 72. Numerous parties petitioned for judicial review, challenging the Commission's conclusion that cable modem service was not telecommunications service. By judicial lottery, the Court of Appeals for the Ninth Circuit was selected as the venue for the challenge. The Court of Appeals granted the petitions in part, vacated the Declaratory Ruling in part, and remanded to the Commission for further proceedings. In particular, the Court of Appeals vacated the ruling to the extent it concluded that cable modem service was not "telecommunications service" under the Communications Act. It held that the Commission could not permissibly construe the Communications Act to exempt cable companies providing Internet service from Title II regulation. See 345 F. 3d, at 1132. Rather than analyzing the permissibility of that construction under the deferential framework of Chevron, 467 U.S. 837, however, the Court of Appeals grounded its holding in the stare decisis effect of AT&T Corp. v. Portland, 216 F.3d 871 (CA9 2000). See 345 F. 3d, at 1128-1132. Portland held that cable modem service was a "telecommunications service," *980 though the court in that case was not reviewing an administrative proceeding and the Commission was not a party to the case. See 216 F. 3d, at 877-880. Nevertheless, Portland's holding, the Court of Appeals reasoned, overrode the contrary interpretation reached by the Commission in the Declaratory Ruling. See 345 F. 3d, at 1130-1131. We granted certiorari to settle the important questions of federal law that these cases present. 543 U.S. 1018 (2004). III We first consider whether we should apply Chevron's framework to the Commission's interpretation of the term "telecommunications service." We conclude that we should. We also conclude that the Court of Appeals should have done the same, instead of following the contrary construction it adopted in Portland. A In Chevron, this Court held that ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts. 467 U. S., at 865-866. If a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation. Id., at 843-844, and n. 11. The Chevron framework governs our review of the Commission's construction. Congress has delegated to the Commission the authority to "execute and enforce" the Communications Act, § 151, and to "prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions" of the Act, § 201(b); AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 377-378 (1999). These provisions give the Commission the authority to promulgate *981 binding legal rules; the Commission issued the order under review in the exercise of that authority; and no one questions that the order is within the Commission's jurisdiction. See Household Credit Services, Inc. v. Pfennig, 541 U.S. 232, 238-239 (2004); United States v. Mead Corp., 533 U.S. 218, 231-234 (2001); Christensen v. Harris County, 529 U.S. 576, 586-588 (2000). Hence, as we have in the past, we apply the Chevron framework to the Commission's interpretation of the Communications Act. See National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327, 333-339 (2002); Verizon, 535 U. S., at 501-502. Some of the respondents dispute this conclusion, on the ground that the Commission's interpretation is inconsistent with its past practice. We reject this argument. Agency inconsistency is not a basis for declining to analyze the agency's interpretation under the Chevron framework. Un-explained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 46-57 (1983). For if the agency adequately explains the reasons for a reversal of policy, "change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency." Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996); see also Rust v. Sullivan, 500 U.S. 173, 186-187 (1991); Barnhart v. Walton, 535 U.S. 212, 226 (2002) (SCALIA, J., concurring in part and concurring in judgment). "An initial agency interpretation is not instantly carved in stone. On the contrary, the agency ... must consider varying interpretations and the wisdom of its policy on a continuing basis," Chevron, supra, at 863-864, for example, in response to changed factual circumstances, or a change in administrations, see State Farm, supra, at 59 (REHNQUIST, J., concurring in part and dissenting in part). That is no doubt why *982 in Chevron itself, this Court deferred to an agency interpretation that was a recent reversal of agency policy. See 467 U. S., at 857-858. We therefore have no difficulty concluding that Chevron applies. B The Court of Appeals declined to apply Chevron because it thought the Commission's interpretation of the Communications Act foreclosed by the conflicting construction of the Act it had adopted in Portland. See 345 F. 3d, at 1127-1132. It based that holding on the assumption that Portland's construction overrode the Commission's, regardless of whether Portland had held the statute to be unambiguous. 345 F. 3d, at 1131. That reasoning was incorrect. A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from Chevron itself. Chevron established a "presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Smiley, supra, at 740-741. Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court's interpretation to override an agency's. Chevron's premise is that it is for agencies, not courts, to fill statutory gaps. See 467 U. S., at 843-844, and n. 11. The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency's construction on a blank slate: Only a judicial precedent holding that the statute *983 unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. A contrary rule would produce anomalous results. It would mean that whether an agency's interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court's construction came first, its construction would prevail, whereas if the agency's came first, the agency's construction would command Chevron deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals' rule, moreover, would "lead to the ossification of large portions of our statutory law," Mead, 533 U. S., at 247 (Scalia, J., dissenting), by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither Chevron nor the doctrine of stare decisis requires these haphazard results. The dissent answers that allowing an agency to override what a court believes to be the best interpretation of a statute makes "judicial decisions subject to reversal by executive officers." Post, at 1016 (opinion of SCALIA, J.). It does not. Since Chevron teaches that a court's opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency's decision to construe that statute differently from a court does not say that the court's holding was legally wrong. Instead, the agency may, consistent with the court's holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes. In all other respects, the court's prior ruling remains binding law (for example, as to agency interpretations to which Chevron is inapplicable). The precedent has not been "reversed" by the agency, any more than a federal court's interpretation of a State's law can be said to have been "reversed" by a *984 state court that adopts a conflicting (yet authoritative) interpretation of state law. The Court of Appeals derived a contrary rule from a mistaken reading of this Court's decisions. It read Neal v. United States, 516 U.S. 284 (1996), to establish that a prior judicial construction of a statute categorically controls an agency's contrary construction. 345 F. 3d, at 1131-1132; see also post, at 1016, n. 11 (SCALIA, J., dissenting). Neal established no such proposition. Neal declined to defer to a construction adopted by the United States Sentencing Commission that conflicted with one the Court previously had adopted in Chapman v. United States, 500 U.S. 453 (1991). Neal, supra, at 290-295. Chapman, however, had held the relevant statute to be unambiguous. See 500 U. S., at 463 (declining to apply the rule of lenity given the statute's clear language). Thus, Neal established only that a precedent holding a statute to be unambiguous forecloses a contrary agency construction. That limited holding accorded with this Court's prior decisions, which had held that a court's interpretation of a statute trumps an agency's under the doctrine of stare decisis only if the prior court holding "determined a statute's clear meaning." Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990) (emphasis added); see also Lechmere, Inc. v. NLRB, 502 U.S. 527, 536-537 (1992). Those decisions allow a court's prior interpretation of a statute to override an agency's interpretation only if the relevant court decision held the statute unambiguous. Against this background, the Court of Appeals erred in refusing to apply Chevron to the Commission's interpretation of the definition of "telecommunications service," 47 U.S. C. § 153(46). Its prior decision in Portland held only that the best reading of § 153(46) was that cable modem service was a "telecommunications service," not that it was the only permissible reading of the statute. See 216 F. 3d, at 877-880. Nothing in Portland held that the Communications *985 Act unambiguously required treating cable Internet providers as telecommunications carriers. Instead, the court noted that it was "not presented with a case involving potential deference to an administrative agency's statutory construction pursuant to the Chevron doctrine," id., at 876; and the court invoked no other rule of construction (such as the rule of lenity) requiring it to conclude that the statute was unambiguous to reach its judgment. Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency's, the court must hold that the statute unambiguously requires the court's construction. Portland did not do so. As the dissent points out, it is not logically necessary for us to reach the question whether the Court of Appeals misapplied Chevron for us to decide whether the Commission acted lawfully. See post, at 1019-1020 (opinion of SCALIA, J.). Nevertheless, it is no "great mystery" why we are reaching the point here. Post, at 1019. There is genuine confusion in the lower courts over the interaction between the Chevron doctrine and stare decisis principles, as the petitioners informed us at the certiorari stage of this litigation. See Pet. for Cert. of Federal Communications Commission et al. in No. 04-281, pp. 19-23; Pet. for Cert. of National Cable & Telecomm. Assn. et al. in No. 04-277, pp. 22-29. The point has been briefed. See Brief for Federal Petitioners 38-44; Brief for Cable-Industry Petitioners 30-36. And not reaching the point could undermine the purpose of our grant of certiorari: to settle authoritatively whether the Commission's Declaratory Ruling is lawful. Were we to uphold the Declaratory Ruling without reaching the Chevron point, the Court of Appeals could once again strike down the Commission's rule based on its Portland decision. Portland (at least arguably) could compel the Court of Appeals once again to reverse the Commission despite our decision, since our conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an "information *986 service" leaves untouched Portland's holding that the Commission's interpretation is not the best reading of the statute. We have before decided similar questions that were not, strictly speaking, necessary to our disposition. See, e. g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (requiring the Courts of Appeals to adhere to our directly controlling precedents, even those that rest on reasons rejected in other decisions); Roper v. Simmons, 543 U.S. 551, 628-629 (2005) (SCALIA, J., dissenting) (criticizing this Court for not reaching the question whether the Missouri Supreme Court erred by failing to follow directly controlling Supreme Court precedent, though that conclusion was not necessary to the Court's decision). It is prudent for us to do so once again today. IV We next address whether the Commission's construction of the definition of "telecommunications service," 47 U.S. C. § 153(46), is a permissible reading of the Communications Act under the Chevron framework. Chevron established a familiar two-step procedure for evaluating whether an agency's interpretation of a statute is lawful. At the first step, we ask whether the statute's plain terms "directly addres[s] the precise question at issue." 467 U. S., at 843. If the statute is ambiguous on the point, we defer at step two to the agency's interpretation so long as the construction is "a reasonable policy choice for the agency to make." Id., at 845. The Commission's interpretation is permissible at both steps. A We first set forth our understanding of the interpretation of the Communications Act that the Commission embraced. The issue before the Commission was whether cable companies providing cable modem service are providing a "telecommunications service" in addition to an "information service." *987 The Commission first concluded that cable modem service is an "information service," a conclusion unchallenged here. The Act defines "information service" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications . . . ." § 153(20). Cable modem service is an information service, the Commission reasoned, because it provides consumers with a comprehensive capability for manipulating information using the Internet via high-speed telecommunications. That service enables users, for example, to browse the World Wide Web, to transfer files from file archives available on the Internet via the "File Transfer Protocol," and to access e-mail and Usenet newsgroups. Declaratory Ruling 4821, ¶ 37; Universal Service Report 11537, ¶ 76. Like other forms of Internet service, cable modem service also gives users access to the Domain Name System (DNS). DNS, among other things, matches the Web page addresses that end users type into their browsers (or "click" on) with the Internet Protocol (IP) addresses[1] of the servers containing the Web pages the users wish to access. Declaratory Ruling 4821-4822, ¶ 37. All of these features, the Commission concluded, were part of the information service that cable companies provide consumers. Id., at 4821-4823, ¶¶ 36-38; see also Universal Service Report 11536-11539, ¶¶ 75-79. At the same time, the Commission concluded that cable modem service was not "telecommunications service." "Telecommunications service" is "the offering of telecommunications for a fee directly to the public." 47 U.S. C. § 153(46). "Telecommunications," in turn, is defined as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." *988 § 153(43). The Commission conceded that, like all information-service providers, cable companies use "telecommunications" to provide consumers with Internet service; cable companies provide such service via the high-speed wire that transmits signals to and from an end user's computer. Declaratory Ruling 4823, ¶ 40. For the Commission, however, the question whether cable broadband Internet providers "offer" telecommunications involved more than whether telecommunications was one necessary component of cable modem service. Instead, whether that service also includes a telecommunications "offering" "turn[ed] on the nature of the functions the end user is offered," id., at 4822, ¶ 38 (emphasis added), for the statutory definition of "telecommunications service" does not "res[t] on the particular types of facilities used," id., at 4821, ¶ 35; see § 153(46) (definition of "telecommunications service" applies "regardless of the facilities used"). Seen from the consumer's point of view, the Commission concluded, cable modem service is not a telecommunications offering because the consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access: "As provided to the end user the telecommunications is part and parcel of cable modem service and is integral to its other capabilities." Declaratory Ruling 4823, ¶ 39. The wire is used, in other words, to access the World Wide Web, newsgroups, and so forth, rather than "transparently" to transmit and receive ordinary-language messages without computer processing or storage of the message. See supra, at 976 (noting the Computer II notion of "transparent" transmission). The integrated character of this offering led the Commission to conclude that cable modem service is not a "stand-alone," transparent offering of telecommunications. Declaratory Ruling 4823-4825, ¶¶ 41-43. *989 B This construction passes Chevron's first step. Respondents argue that it does not, on the ground that cable companies providing Internet service necessarily "offe[r]" the underlying telecommunications used to transmit that service. The word "offering" as used in § 153(46), however, does not unambiguously require that result. Instead, "offering" can reasonably be read to mean a "stand-alone" offering of telecommunications, i. e., an offered service that, from the user's perspective, transmits messages unadulterated by computer processing. That conclusion follows not only from the ordinary meaning of the word "offering," but also from the regulatory history of the Communications Act. 1 Cable companies in the broadband Internet service business "offe[r]" consumers an information service in the form of Internet access and they do so "via telecommunications," § 153(20), but it does not inexorably follow as a matter of ordinary language that they also "offe[r]" consumers the high-speed data transmission (telecommunications) that is an input used to provide this service, § 153(46). We have held that where a statute's plain terms admit of two or more reasonable ordinary usages, the Commission's choice of one of them is entitled to deference. See Verizon, 535 U. S., at 498 (deferring to the Commission's interpretation of the term "cost" by reference to an alternative linguistic usage defined by what "[a] merchant who is asked about `the cost of providing the goods'" might "reasonably" say); National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407, 418 (1992) (agency construction entitled to deference where there were "alternative dictionary definitions of the word" at issue). The term "offe[r]" as used in the definition of telecommunications service, § 153(46), is ambiguous in this way. *990 It is common usage to describe what a company "offers" to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product, as the dissent concedes. See post, at 1006-1007 (opinion of Scalia, J.). One might well say that a car dealership "offers" cars, but does not "offer" the integrated major inputs that make purchasing the car valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as "offering" consumers the car's components in addition to the car itself. Even if it is linguistically permissible to say that the car dealership "offers" engines when it offers cars, that shows, at most, that the term "offer," when applied to a commercial transaction, is ambiguous about whether it describes only the offered finished product, or the product's discrete components as well. It does not show that no other usage is permitted. The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated offering. See ibid. We think that they are sufficiently integrated, because "[a] consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access." Supra, at 988. In the telecommunications context, it is at least reasonable to describe companies as not "offering" to consumers each discrete input that is necessary to providing, and is always used in connection with, a finished service. We think it no misuse of language, for example, to say that cable companies providing Internet service do not "offer" consumers DNS, even though DNS is essential to providing Internet access. Declaratory Ruling 4810, n. 74, 4822-4823, ¶ 38. Likewise, a telephone company "offers" consumers a transparent transmission path that conveys an ordinary-language message, not necessarily the data-transmission *991 facilities that also "transmi[t] . . . information of the user's choosing," § 153(43), or other physical elements of the facilities used to provide telephone service, like the trunks and switches, or the copper in the wires. What cable companies providing cable modem service and telephone companies providing telephone service "offer" is Internet service and telephone service respectively—the finished services, though they do so using (or "via") the discrete components composing the end product, including data transmission. Such functionally integrated components need not be described as distinct "offerings." In response, the dissent argues that the high-speed transmission component necessary to providing cable modem service is necessarily "offered" with Internet service because cable modem service is like the offering of pizza delivery service together with pizza, and the offering of puppies together with dog leashes. Post, at 1007-1008 (opinion of SCALIA, J.). The dissent's appeal to these analogies only underscores that the term "offer" is ambiguous in the way that we have described. The entire question is whether the products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes). That question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance. As the Commission has candidly recognized, "the question may not always be straightforward whether, on the one hand, an entity is providing a single information service with communications and computing components, or, on the other hand, is providing two distinct services, one of which is a telecommunications service." Universal Service Report 11530, ¶ 60. Because the term "offer" can sometimes refer to a single, finished product and sometimes to the "individual components in a package being offered" (depending on whether the components "still possess sufficient identity to be described *992 as separate objects," post, at 1006), the statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering. This leaves federal telecommunications policy in this technical and complex area to be set by the Commission, not by warring analogies. We also do not share the dissent's certainty that cable modem service is so obviously like pizza delivery service and the combination of dog leashes and dogs that the Commission could not reasonably have thought otherwise. Post, at 1007-1008. For example, unlike the transmission component of Internet service, delivery service and dog leashes are not integral components of the finished products (pizzas and pet dogs). One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet and the transmission always occurs in connection with information processing. In any event, we doubt that a statute that, for example, subjected offerors of "delivery" service (such as Federal Express and United Parcel Service) to common-carrier regulation would unambiguously require pizza-delivery companies to offer their delivery services on a common-carrier basis. 2 The Commission's traditional distinction between basic and enhanced service, see supra, at 976-977, also supports the conclusion that the Communications Act is ambiguous about whether cable companies "offer" telecommunications with cable modem service. Congress passed the definitions in the Communications Act against the background of this regulatory history, and we may assume that the parallel terms "telecommunications service" and "information service" substantially incorporated their meaning, as the Commission has held. See, e. g., In re Federal-State Joint Board on Universal Service, 12 FCC Rcd. 8776, 9179-9180, ¶ 788 *993 (1997) (noting that the "definition of enhanced services is substantially similar to the definition of information services" and that "all services previously considered `enhanced services' are `information services'"); Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 159 (1993) (noting presumption that Congress is aware of "settled judicial and administrative interpretation[s]" of terms when it enacts a statute). The regulatory history in at least two respects confirms that the term "telecommunications service" is ambiguous. First, in the Computer II Order that established the terms "basic" and "enhanced" services, the Commission defined those terms functionally, based on how the consumer interacts with the provided information, just as the Commission did in the order below. See supra, at 976-977. As we have explained, Internet service is not "transparent in terms of its interaction with customer supplied information," Computer II Order 420, ¶ 96; the transmission occurs in connection with information processing. It was therefore consistent with the statute's terms for the Commission to assume that the parallel term "telecommunications service" in 47 U.S. C. § 153(46) likewise describes a "pure" or "transparent" communications path not necessarily separately present, from the end user's perspective, in an integrated information-service offering. The Commission's application of the basic/enhanced-service distinction to non-facilities-based ISPs also supports this conclusion. The Commission has long held that "all those who provide some form of transmission services are not necessarily common carriers." Computer II Order 431, ¶ 122; see also id., at 435, ¶ 132 ("acknowledg[ing] the existence of a communications component" in enhanced-service offerings). For example, the Commission did not subject to common-carrier regulation those service providers that offered enhanced services over telecommunications facilities, but that did not themselves own the underlying facilities— so-called "non-facilities-based" providers. See Universal *994 Service Report 11530, ¶ 60. Examples of these services included database services in which a customer used telecommunications to access information, such as Dow Jones News and Lexis, as well as "value added networks," which lease wires from common carriers and provide transmission as well as protocol-processing service over those wires. See In re Amendment to Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry), 3 FCC Rcd. 1150, 1153, n. 23 (1988); supra, at 977 (explaining protocol conversion). These services "combin[ed] communications and computing components," yet the Commission held that they should "always be deemed enhanced" and therefore not subject to common-carrier regulation. Universal Service Report 11530, ¶ 60. Following this traditional distinction, the Commission in the Universal Service Report classified ISPs that leased rather than owned their transmission facilities as pure information-service providers. Id., at 11540, ¶ 81. Respondents' statutory arguments conflict with this regulatory history. They claim that the Communications Act unambiguously classifies as telecommunications carriers all entities that use telecommunications inputs to provide information service. As respondent MCI concedes, this argument would subject to mandatory common-carrier regulation all information-service providers that use telecommunications as an input to provide information service to the public. Brief for Respondent MCI, Inc., 30. For example, it would subject to common-carrier regulation non-facilities-based ISPs that own no transmission facilities. See Universal Service Report 11532-11533, ¶ 66. Those ISPs provide consumers with transmission facilities used to connect to the Internet, see supra, at 974, and so, under respondents' argument, necessarily "offer" telecommunications to consumers. Respondents' position that all such entities are necessarily "offering telecommunications" therefore entails mandatory common-carrier regulation of entities that the Commission *995 never classified as "offerors" of basic transmission service, and therefore common carriers, under the Computer II regime.[2] See Universal Service Report 11540, ¶ 81 (noting past Commission policy); Computer and Communications Industry Assn. v. FCC, 693 F.2d 198, 209 (CADC 1982) (noting and upholding Commission's Computer II "finding that enhanced services . . . are not common carrier services within the scope of Title II"). We doubt that the parallel term "telecommunications service" unambiguously worked this abrupt shift in Commission policy. Respondents' analogy between cable companies that provide cable modem service and facilities-based enhanced-service providers—that is, enhanced-service providers who own the transmission facilities used to provide those services—fares no better. Respondents stress that under the Computer II rules the Commission regulated such providers more heavily than non-facilities-based providers. The Commission required, for example, local telephone companies that provided enhanced services to offer their wires on a common-carrier basis to competing enhanced-service providers. See, e. g., In re Amendment of Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry), 104 F. C. C. 2d 958, 964, ¶ 4 (1986) (hereinafter Computer III Order). Respondents argue that the Communications Act unambiguously requires the same treatment for cable companies because cable companies also own the facilities they use to provide cable modem service (and therefore information service). *996 We disagree. We think it improbable that the Communications Act unambiguously freezes in time the Computer II treatment of facilities-based information-service providers. The Act's definition of "telecommunications service" says nothing about imposing more stringent regulatory duties on facilities-based information-service providers. The definition hinges solely on whether the entity "offer[s] telecommunications for a fee directly to the public," 47 U.S. C. § 153(46), though the Act elsewhere subjects facilities-based carriers to stricter regulation, see § 251(c) (imposing various duties on facilities-based local telephone companies). In the Computer II rules, the Commission subjected facilities-based providers to common-carrier duties not because of the nature of the "offering" made by those carriers, but rather because of the concern that local telephone companies would abuse the monopoly power they possessed by virtue of the "bottleneck" local telephone facilities they owned. See Computer II Order 474-475, ¶¶ 229, 231; Computer III Order 968-969, ¶ 12; Verizon, 535 U. S., at 489-490 (describing the naturally monopolistic physical structure of a local telephone exchange). The differential treatment of facilities-based carriers was therefore a function not of the definitions of "enhanced-service" and "basic service," but instead of a choice by the Commission to regulate more stringently, in its discretion, certain entities that provided enhanced service. The Act's definitions, however, parallel the definitions of enhanced and basic service, not the facilities-based grounds on which that policy choice was based, and the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction. In fact, it has invited comment on whether it can and should do so. See supra, at 979. In sum, if the Act fails unambiguously to classify nonfacilities-based information-service providers that use telecommunications inputs to provide an information service as "offer[ors]" of "telecommunications," then it also fails unambiguously *997 to classify facilities-based information-service providers as telecommunications-service offerors; the relevant definitions do not distinguish facilities-based and nonfacilities-based carriers. That silence suggests, instead, that the Commission has the discretion to fill the consequent statutory gap. C We also conclude that the Commission's construction was "a reasonable policy choice for the [Commission] to make" at Chevron's second step. 467 U. S., at 845. Respondents argue that the Commission's construction is unreasonable because it allows any communications provider to "evade" common-carrier regulation by the expedient of bundling information service with telecommunications. Respondents argue that under the Commission's construction a telephone company could, for example, offer an information service like voice mail together with telephone service, thereby avoiding common-carrier regulation of its telephone service. We need not decide whether a construction that resulted in these consequences would be unreasonable because we do not believe that these results follow from the construction the Commission adopted. As we understand the Declaratory Ruling, the Commission did not say that any telecommunications service that is priced or bundled with an information service is automatically unregulated under Title II. The Commission said that a telecommunications input used to provide an information service that is not "separable from the data-processing capabilities of the service" and is instead "part and parcel of [the information service] and is integral to [the information service's] other capabilities" is not a telecommunications offering. Declaratory Ruling 4823, ¶ 39; see supra, at 988. This construction does not leave all information-service offerings exempt from mandatory Title II regulation. "It is plain," for example, that a local telephone company "cannot *998 escape Title II regulation of its residential local exchange service simply by packaging that service with voice mail." Universal Service Report 11530, ¶ 60. That is because a telephone company that packages voice mail with telephone service offers a transparent transmission path—telephone service—that transmits information independent of the information-storage capabilities provided by voice mail. For instance, when a person makes a telephone call, his ability to convey and receive information using the call is only trivially affected by the additional voice-mail capability. Equally, were a telephone company to add a time-of-day announcement that played every time the user picked up his telephone, the "transparent" information transmitted in the ensuing call would be only trivially dependent on the information service the announcement provides. By contrast, the high-speed transmission used to provide cable modem service is a functionally integrated component of that service because it transmits data only in connection with the further processing of information and is necessary to provide Internet service. The Commission's construction therefore was more limited than respondents assume. Respondents answer that cable modem service does, in fact, provide "transparent" transmission from the consumer's perspective, but this argument, too, is mistaken. Respondents characterize the "information-service" offering of Internet access as consisting only of access to a cable company's e-mail service, its Web page, and the ability it provides consumers to create a personal Web page. When a consumer goes beyond those offerings and accesses content provided by parties other than the cable company, respondents argue, the consumer uses "pure transmission" no less than a consumer who purchases phone service together with voice mail. This argument, we believe, conflicts with the Commission's understanding of the nature of cable modem service, an understanding we find to be reasonable. When an end user *999 accesses a third-party's Web site, the Commission concluded, he is equally using the information service provided by the cable company that offers him Internet access as when he accesses the company's own Web site, its e-mail service, or his personal Web page. For example, as the Commission found below, part of the information service cable companies provide is access to DNS service. See supra, at 987. A user cannot reach a third-party's Web site without DNS, which (among other things) matches the Web site address the end user types into his browser (or "clicks" on with his mouse) with the IP address of the Web page's host server. See P. Albitz & C. Liu, DNS and BIND 10 (4th ed. 2001) (For an Internet user, "DNS is a must. . . . [N]early all of the Internet's network services use DNS. That includes the World Wide Web, electronic mail, remote terminal access, and file transfer"). It is at least reasonable to think of DNS as a "capability for . . . acquiring . . . retrieving, utilizing, or making available" Web site addresses and therefore part of the information service cable companies provide. 47 U.S. C. § 153(20).[3] Similarly, the Internet service provided by cable companies facilitates access to third-party Web pages by offering consumers the ability to store, or "cache," popular content on local computer servers. See Declaratory Ruling 4810, ¶ 17, and n. 76. Cacheing obviates the need for the end user to download anew information from third-party *1000 Web sites each time the consumer attempts to access them, thereby increasing the speed of information retrieval. In other words, subscribers can reach third-party Web sites via "the World Wide Web, and browse their contents, [only] because their service provider offers the `capability for . . . acquiring, [storing] . . . retrieving [and] utilizing . . . information.'" Universal Service Report 11538, ¶ 76 (quoting 47 U.S. C. § 153(20)). "The service that Internet access providers offer to members of the public is Internet access," Universal Service Report 11539, ¶ 79, not a transparent ability (from the end user's perspective) to transmit information. We therefore conclude that the Commission's construction was reasonable. V Respondent MCI, Inc., urges that the Commission's treatment of cable modem service is inconsistent with its treatment of DSL service, see supra, at 975 (describing DSL service), and therefore is an arbitrary and capricious deviation from agency policy. See 5 U.S. C. § 706(2)(A). MCI points out that when local telephone companies began to offer Internet access through DSL technology in addition to telephone service, the Commission applied its Computer II facilities-based classification to them and required them to make the telephone lines used to transmit DSL service available to competing ISPs on nondiscriminatory, common-carrier terms. See supra, at 996 (describing Computer II facilities-based classification of enhanced-service providers); In re Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd. 24011, 24030-24031, ¶¶ 36-37 (1998) (hereinafter Wireline Order) (classifying DSL service as a telecommunications service). MCI claims that the Commission's decision not to regulate cable companies similarly under Title II is inconsistent with its DSL policy. We conclude, however, that the Commission provided a reasoned explanation for treating cable modem service differently *1001 from DSL service. As we have already noted, see supra, at 981-982, the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.[4] It has done so here. The traditional reason for its Computer II common-carrier treatment of facilities-based carriers (including DSL carriers), as the Commission explained, was "that the telephone network [was] the primary, if not exclusive, means through which information service providers can gain access to their customers." Declaratory Ruling 4825, ¶ 44 (emphasis in original; internal quotation marks omitted). The Commission applied the same treatment to DSL service based on that history, rather than on an analysis of contemporaneous market conditions. See Wireline Order 24031, ¶ 37 (noting DSL carriers' "continuing obligation" to offer their transmission facilities to competing ISPs on nondiscriminatory terms). The Commission in the order under review, by contrast, concluded that changed market conditions warrant different treatment of facilities-based cable companies providing Internet access. Unlike at the time of Computer II, substitute forms of Internet transmission exist today: "[R]esidential high-speed access to the Internet is evolving over multiple electronic platforms, including wireline, cable, terrestrial wireless and satellite." Declaratory Ruling 4802, ¶ 6; see also U. S. Telecom Assn. v. FCC, 290 F.3d 415, 428 (CADC 2002) (noting Commission findings of "robust competition . . . in the broadband market"). The Commission concluded that "`broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.'" Declaratory Ruling 4802, ¶ 5. *1002 This, the Commission reasoned, warranted treating cable companies unlike the facilities-based enhanced-service providers of the past. Id., at 4825, ¶ 44. We find nothing arbitrary about the Commission's providing a fresh analysis of the problem as applied to the cable industry, which it has never subjected to these rules. This is adequate rational justification for the Commission's conclusions. Respondents argue, in effect, that the Commission's justification for exempting cable modem service providers from common-carrier regulation applies with similar force to DSL providers. We need not address that argument. The Commission's decision appears to be a first step in an effort to reshape the way the Commission regulates information-service providers; that may be why it has tentatively concluded that DSL service provided by facilities-based telephone companies should also be classified solely as an information service. See In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 17 FCC Rcd. 3019, 3030, ¶ 20 (2002). The Commission need not immediately apply the policy reasoning in the Declaratory Ruling to all types of information-service providers. It apparently has decided to revisit its longstanding Computer II classification of facilities-based information-service providers incrementally. Any inconsistency between the order under review and the Commission's treatment of DSL service can be adequately addressed when the Commission fully reconsiders its treatment of DSL service and when it decides whether, pursuant to its ancillary Title I jurisdiction, to require cable companies to allow independent ISPs access to their facilities. See supra, at 979 and this page. We express no view on those matters. In particular, we express no view on how the Commission should, or lawfully may, classify DSL service. * * * The questions the Commission resolved in the order under review involve a "subject matter [that] is technical, complex, *1003 and dynamic." Gulf Power, 534 U. S., at 339. The Commission is in a far better position to address these questions than we are. Nothing in the Communications Act or the Administrative Procedure Act makes unlawful the Commission's use of its expert policy judgment to resolve these difficult questions. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.

Title II of the Communications Act of 1934, as amended, 47 U.S. C. 151 et seq., subjects all providers of "telecommunications servic[e]" to mandatory common-carrier regulation, 153(44). In the order under review, the *974 Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide "telecommunications servic[e]" as the Communications Act defines that term, and hence are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act under U. S. A. and the Administrative Procedure Act, 5 U.S. C. 551 et seq. We hold that it is. I The traditional means by which consumers in the United States access the network of interconnected computers that make up the Internet is through "dial-up" connections provided over local telephone facilities. See ; In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798, 4802-4803, ¶ 9 (hereinafter Declaratory Ruling). Using these connections, consumers access the Internet by making calls with computer modems through the telephone wires owned by local phone companies. See Communications Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by providing a physical connection, but also by offering consumers the ability to translate raw Internet data into information they may both view on their personal computers and transmit to other computers connected to the Internet. See In re Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11501, 11531, ¶ 63 (1998) (hereinafter Universal Service Report or Report); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law 988 (hereinafter Huber); 345 F. 3d, at Technological limitations of local telephone wires, however, retard the speed at which data from the Internet may be transmitted *975 through end users' dial-up connections. Dial-up connections are therefore known as "narrowband," or slower speed, connections. "Broadband" Internet service, by contrast, transmits data at much higher speeds. There are two principal kinds of broadband Internet service: cable modem service and Digital Subscriber Line (DSL) service. Cable modem service transmits data between the Internet and users' computers via the network of television cable lines owned by cable companies. See DSL service provides high-speed access using the local telephone wires owned by local telephone companies. See WorldCom, Cable companies and telephone companies can either provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease their transmission facilities to independent ISPs that then use the facilities to provide consumers with Internet access. Other ways of transmitting high-speed Internet data into homes, including terrestrial and satellite-based wireless networks, are also emerging. Declaratory Ruling 4802, ¶ 6. II At issue in these cases is the proper regulatory classification under the Communications Act of broadband cable Internet service. The Act, as amended by the Telecommunications Act of 1996, defines two categories of regulated entities relevant to these cases: telecommunications carriers and information-service providers. The Act regulates telecommunications carriers, but not information service providers, as common carriers. Telecommunications carriers, for example, must charge just and reasonable, nondiscriminatory rates to their customers, 47 U.S. C. 201-, design their systems so that other carriers can interconnect with their communications networks, 251(a)(1), and contribute to the federal "universal service" fund, 254(d). *976 These provisions are mandatory, but the Commission must forbear from applying them if it determines that the public interest requires it. 160(a), (b). Information-service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications, see 151-161. These two statutory classifications originated in the late 1970's, as the Commission developed rules to regulate data-processing services offered over telephone wires. That regime, the "Computer II" rules, distinguished between "basic" service (like telephone service) and "enhanced" service (computer-processing service offered over telephone lines). In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77 F. C. C. 2d 384, 417-423, ¶¶ 86-101 (1980) (hereinafter Computer II Order). The Computer II rules defined both basic and enhanced services by reference to how the consumer perceives the service being offered. In particular, the Commission defined "basic service" as "a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information." By "pure" or "transparent" transmission, the Commission meant a communications path that enabled the consumer to transmit an ordinary-language message to another point, with no computer processing or storage of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting it over the network— such as via a telephone or a facsimile. Basic service was subject to common-carrier regulation. "[E]nhanced service," however, was service in which "computer processing applications [were] used to act on the *977 content, code, protocol, and other aspects of the subscriber's information," such as voice and data storage services, as well as "protocol conversion" (i. e., ability to communicate between networks that employ different data-transmission formats), By contrast to basic service, the Commission decided not to subject providers of enhanced service, even enhanced service offered via transmission wires, to Title II common-carrier regulation. The Commission explained that it was unwise to subject enhanced service to common-carrier regulation given the "fast-moving, competitive market" in which they were offered. The definitions of the terms "telecommunications service" and "information service" established by the 1996 Act are similar to the Computer II basic- and enhanced-service classifications. "Telecommunications service"—the analog to basic service—is "the offering of telecommunications for a fee directly to the public regardless of the facilities used." 47 U.S. C. 153(46). "Telecommunications" is "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 153(43). "Telecommunications carrier[s]"—those subjected to mandatory Title II common-carrier regulation—are defined as "provider[s] of telecommunications services." 153(44). And "information service"—the analog to enhanced service—is "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." 153(20). In September the Commission initiated a rulemaking proceeding to, among other things, apply these classifications to cable companies that offer broadband Internet service directly to consumers. In March that rulemaking culminated in the Declaratory Ruling under review in these cases. In the Declaratory Ruling, the Commission concluded *978 that broadband Internet service provided by cable companies is an "information service" but not a "telecommunications service" under the Act, and therefore not subject to mandatory Title II common-carrier regulation. In support of this conclusion, the Commission relied heavily on its Universal Service Report. See Declaratory Ruling 4821-4822, ¶¶ 36-37 (citing Universal Service Report). The Universal Service Report classified "non-facilities-based" ISPs— those that do not own the transmission facilities they use to connect the end user to the Internet—solely as information-service providers. See Universal Service Report 11533, ¶ 67. Unlike those ISPs, cable companies own the cable lines they use to provide Internet access. Nevertheless, in the Declaratory Ruling, the Commission found no basis in the statutory definitions for treating cable companies differently from non-facilities-based ISPs: Both offer "a single, integrated service that enables the subscriber to utilize Internet access service and to realize the benefits of a comprehensive service offering." Declaratory Ruling 4823, ¶ 38. Because Internet access provides a capability for manipulating and storing information, the Commission concluded that it was an information service. The integrated nature of Internet access and the high-speed wire used to provide Internet access led the Commission to conclude that cable companies providing Internet access are not telecommunications providers. This conclusion, the Commission reasoned, followed from the logic of the Universal Service Report. The Report had concluded that, though Internet service "involves data transport elements" because "an Internet access provider must enable the movement of information between customers' own computers and distant computers with which those customers seek to interact," it also "offers end users information-service capabilities inextricably intertwined with data transport." Universal Service Report 11539-11540, ¶ 80. ISPs, therefore, were not "offering telecommunications directly to the public," *979 153(46), and so were not properly classified as telecommunications carriers, see In other words, the Commission reasoned that consumers use their cable modems not to transmit information "transparently," such as by using a telephone, but instead to obtain Internet access. The Commission applied this same reasoning to cable companies offering broadband Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not "offe[r] telecommunications service to the end user, but rather merely us[e] telecommunications to provide end users with cable modem service." Declaratory Ruling 4824, ¶ 41. Though the Commission declined to apply mandatory Title II common-carrier regulation to cable companies, it invited comment on whether under its Title I jurisdiction it should require cable companies to offer other ISPs access to their facilities on common-carrier terms. Numerous parties petitioned for judicial review, challenging the Commission's conclusion that cable modem service was not telecommunications service. By judicial lottery, the Court of Appeals for the Ninth Circuit was selected as the venue for the challenge. The Court of Appeals granted the petitions in part, vacated the Declaratory Ruling in part, and remanded to the Commission for further proceedings. In particular, the Court of Appeals vacated the ruling to the extent it concluded that cable modem service was not "telecommunications service" under the Communications Act. It held that the Commission could not permissibly construe the Communications Act to exempt cable companies providing Internet service from Title II regulation. See Rather than analyzing the permissibility of that construction under the deferential framework of See -1132. Portland held that cable modem service was a "telecommunications service," *980 though the court in that case was not reviewing an administrative proceeding and the Commission was not a party to the case. See -880. Nevertheless, Portland's holding, the Court of Appeals reasoned, overrode the contrary interpretation reached by the Commission in the Declaratory Ruling. See -1. We granted certiorari to settle the important questions of federal law that these cases present. III We first consider whether we should apply 's framework to the Commission's interpretation of the term "telecommunications service." We conclude that we should. We also conclude that the Court of Appeals should have done the same, instead of following the contrary construction it adopted in Portland. A In this Court held that ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts. -866. If a statute is ambiguous, and if the implementing agency's construction is reasonable, requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation. and n. 11. The framework governs our review of the Commission's Congress has delegated to the Commission the authority to "execute and enforce" the Communications Act, 151, and to "prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions" of the Act, 201(b); AT&T These provisions give the Commission the authority to promulgate *981 binding legal rules; the Commission issued the order under review in the exercise of that authority; and no one questions that the order is within the Commission's jurisdiction. See Household Credit Services, ; United ; Hence, as we have in the past, we apply the framework to the Commission's interpretation of the Communications Act. See National Cable & Telecommunications Assn., ; -502. Some of the respondents dispute this conclusion, on the ground that the Commission's interpretation is inconsistent with its past practice. We reject this argument. Agency inconsistency is not a basis for declining to analyze the agency's interpretation under the framework. Un-explained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. See Motor Vehicle Mfrs. Assn. of United States, For if the agency adequately explains the reasons for a reversal of policy, "change is not invalidating, since the whole point of is to leave the discretion provided by the ambiguities of a statute with the implementing agency." ; see also ; "An initial agency interpretation is not instantly carved in stone. On the contrary, the agency must consider varying interpretations and the wisdom of its policy on a continuing basis," for example, in response to changed factual circumstances, or a change in administrations, see State That is no doubt why *982 in itself, this Court deferred to an agency interpretation that was a recent reversal of agency policy. See -858. We therefore have no difficulty concluding that applies. B The Court of Appeals declined to apply because it thought the Commission's interpretation of the Communications Act foreclosed by the conflicting construction of the Act it had adopted in Portland. See -1132. It based that holding on the assumption that Portland's construction overrode the Commission's, regardless of whether Portland had held the statute to be That reasoning was incorrect. A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from itself. established a "presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Smiley, Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court's interpretation to override an agency's. 's premise is that it is for agencies, not courts, to fill statutory gaps. See 467 U. S., and n. 11. The better rule is to hold judicial interpretations contained in precedents to the same demanding step one standard that applies if the court is reviewing the agency's construction on a blank slate: Only a judicial precedent holding that the statute *983 unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency A contrary rule would produce anomalous results. It would mean that whether an agency's interpretation of an ambiguous statute is entitled to deference would turn on the order in which the interpretations issue: If the court's construction came first, its construction would prevail, whereas if the agency's came first, the agency's construction would command deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals' rule, moreover, would "lead to the ossification of large portions of our statutory law," Mead, by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither nor the doctrine of stare decisis requires these haphazard results. The dissent answers that allowing an agency to override what a court believes to be the best interpretation of a statute makes "judicial decisions subject to reversal by executive officers." Post, at 1016 (opinion of SCALIA, J.). It does not. Since teaches that a court's opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency's decision to construe that statute differently from a court does not say that the court's holding was legally wrong. Instead, the agency may, consistent with the court's holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes. In all other respects, the court's prior ruling remains binding law (for example, as to agency interpretations to which is inapplicable). The precedent has not been "reversed" by the agency, any more than a federal court's interpretation of a State's law can be said to have been "reversed" by a *984 state court that adopts a conflicting (yet authoritative) interpretation of state law. The Court of Appeals derived a contrary rule from a mistaken reading of this Court's decisions. It read to establish that a prior judicial construction of a statute categorically controls an agency's contrary -1132; see also post, at 1016, n. 11 established no such proposition. declined to defer to a construction adopted by the United States Sentencing Commission that conflicted with one the Court previously had adopted in Chapman, however, had held the relevant statute to be See Thus, established only that a precedent holding a statute to be unambiguous forecloses a contrary agency That limited holding accorded with this Court's prior decisions, which had held that a court's interpretation of a statute trumps an agency's under the doctrine of stare decisis only if the prior court holding "determined a statute's clear meaning." Maislin Industries, U. S., ; see also Lechmere, Those decisions allow a court's prior interpretation of a statute to override an agency's interpretation only if the relevant court decision held the statute Against this background, the Court of Appeals erred in refusing to apply to the Commission's interpretation of the definition of "telecommunications service," 47 U.S. C. 153(46). Its prior decision in Portland held only that the best reading of 153(46) was that cable modem service was a "telecommunications service," not that it was the only permissible reading of the statute. See -880. Nothing in Portland held that the Communications *985 Act unambiguously required treating cable Internet providers as telecommunications carriers. Instead, the court noted that it was "not presented with a case involving potential deference to an administrative agency's statutory construction pursuant to the doctrine," ; and the court invoked no other rule of construction (such as the rule of lenity) requiring it to conclude that the statute was unambiguous to reach its judgment. Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency's, the court must hold that the statute unambiguously requires the court's Portland did not do so. As the dissent points out, it is not logically necessary for us to reach the question whether the Court of Appeals misapplied for us to decide whether the Commission acted lawfully. See post, at 1019-1020 (opinion of SCALIA, J.). Nevertheless, it is no "great mystery" why we are reaching the point here. Post, at 1019. There is genuine confusion in the lower courts over the interaction between the doctrine and stare decisis principles, as the petitioners informed us at the certiorari stage of this litigation. See Pet. for Cert. of Federal Communications Commission et al. in No. 04-281, pp. 19-23; Pet. for Cert. of National Cable & Telecomm. Assn. et al. in No. 04-277, pp. 22-29. The point has been briefed. See Brief for Federal Petitioners 38-44; Brief for Cable-Industry Petitioners 30-36. And not reaching the point could undermine the purpose of our grant of certiorari: to settle authoritatively whether the Commission's Declaratory Ruling is lawful. Were we to uphold the Declaratory Ruling without reaching the point, the Court of Appeals could once again strike down the Commission's rule based on its Portland decision. Portland (at least arguably) could compel the Court of Appeals once again to reverse the Commission despite our decision, since our conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an "information *986 service" leaves untouched Portland's holding that the Commission's interpretation is not the best reading of the statute. We have before decided similar questions that were not, strictly speaking, necessary to our disposition. See, e. g., ; (criticizing this Court for not reaching the question whether the Missouri Supreme Court erred by failing to follow directly controlling Supreme Court precedent, though that conclusion was not necessary to the Court's decision). It is prudent for us to do so once again today. IV We next address whether the Commission's construction of the definition of "telecommunications service," 47 U.S. C. 153(46), is a permissible reading of the Communications Act under the framework. established a familiar two-step procedure for evaluating whether an agency's interpretation of a statute is lawful. At the first step, we ask whether the statute's plain terms "directly addres[s] the precise question at issue." If the statute is ambiguous on the point, we defer at step two to the agency's interpretation so long as the construction is "a reasonable policy choice for the agency to make." The Commission's interpretation is permissible at both steps. A We first set forth our understanding of the interpretation of the Communications Act that the Commission embraced. The issue before the Commission was whether cable companies providing cable modem service are providing a "telecommunications service" in addition to an "information service." *987 The Commission first concluded that cable modem service is an "information service," a conclusion unchallenged here. The Act defines "information service" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications" 153(20). Cable modem service is an information service, the Commission reasoned, because it provides consumers with a comprehensive capability for manipulating information using the Internet via high-speed telecommunications. That service enables users, for example, to browse the World Wide Web, to transfer files from file archives available on the Internet via the "File Transfer Protocol," and to access e-mail and Usenet newsgroups. Declaratory Ruling 4821, ¶ 37; Universal Service Report 11537, ¶ 76. Like other forms of Internet service, cable modem service also gives users access to the Domain Name System (DNS). DNS, among other things, matches the Web page addresses that end users type into their browsers (or "click" on) with the Internet Protocol (IP) addresses[1] of the servers containing the Web pages the users wish to access. Declaratory Ruling 4821-4822, ¶ 37. All of these features, the Commission concluded, were part of the information service that cable companies provide consumers. ; see also Universal Service Report 11536-11539, ¶¶ 75-79. At the same time, the Commission concluded that cable modem service was not "telecommunications service." "Telecommunications service" is "the offering of telecommunications for a fee directly to the public." 47 U.S. C. 153(46). "Telecommunications," in turn, is defined as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." *988 153(43). The Commission conceded that, like all information-service providers, cable companies use "telecommunications" to provide consumers with Internet service; cable companies provide such service via the high-speed wire that transmits signals to and from an end user's computer. Declaratory Ruling 4823, ¶ 40. For the Commission, however, the question whether cable broadband Internet providers "offer" telecommunications involved more than whether telecommunications was one necessary component of cable modem service. Instead, whether that service also includes a telecommunications "offering" "turn[ed] on the nature of the functions the end user is offered," for the statutory definition of "telecommunications service" does not "res[t] on the particular types of facilities used," ; see 153(46) (definition of "telecommunications service" applies "regardless of the facilities used"). Seen from the consumer's point of view, the Commission concluded, cable modem service is not a telecommunications offering because the consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access: "As provided to the end user the telecommunications is part and parcel of cable modem service and is integral to its other capabilities." Declaratory Ruling 4823, ¶ 39. The wire is used, in other words, to access the World Wide Web, newsgroups, and so forth, rather than "transparently" to transmit and receive ordinary-language messages without computer processing or storage of the message. See The integrated character of this offering led the Commission to conclude that cable modem service is not a "stand-alone," transparent offering of telecommunications. Declaratory Ruling 4823-4825, ¶¶ 41-43. *989 B This construction passes 's first Respondents argue that it does not, on the ground that cable companies providing Internet service necessarily "offe[r]" the underlying telecommunications used to transmit that service. The word "offering" as used in 153(46), however, does not unambiguously require that result. Instead, "offering" can reasonably be read to mean a "stand-alone" offering of telecommunications, i. e., an offered service that, from the user's perspective, transmits messages unadulterated by computer processing. That conclusion follows not only from the ordinary meaning of the word "offering," but also from the regulatory history of the Communications Act. 1 Cable companies in the broadband Internet service business "offe[r]" consumers an information service in the form of Internet access and they do so "via telecommunications," 153(20), but it does not inexorably follow as a matter of ordinary language that they also "offe[r]" consumers the high-speed data transmission (telecommunications) that is an input used to provide this service, 153(46). We have held that where a statute's plain terms admit of two or more reasonable ordinary usages, the Commission's choice of one of them is entitled to deference. See ; National Railroad Passenger The term "offe[r]" as used in the definition of telecommunications service, 153(46), is ambiguous in this way. *990 It is common usage to describe what a company "offers" to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product, as the dissent concedes. See post, at 1006-1007 (opinion of Scalia, J.). One might well say that a car dealership "offers" cars, but does not "offer" the integrated major inputs that make purchasing the car valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as "offering" consumers the car's components in addition to the car itself. Even if it is linguistically permissible to say that the car dealership "offers" engines when it offers cars, that shows, at most, that the term "offer," when applied to a commercial transaction, is ambiguous about whether it describes only the offered finished product, or the product's discrete components as well. It does not show that no other usage is permitted. The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated offering. See We think that they are sufficiently integrated, because "[a] consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access." In the telecommunications context, it is at least reasonable to describe companies as not "offering" to consumers each discrete input that is necessary to providing, and is always used in connection with, a finished service. We think it no misuse of language, for example, to say that cable companies providing Internet service do not "offer" consumers DNS, even though DNS is essential to providing Internet access. Declaratory Ruling 4810, n. 74, 4822-4823, ¶ 38. Likewise, a telephone company "offers" consumers a transparent transmission path that conveys an ordinary-language message, not necessarily the data-transmission *991 facilities that also "transmi[t] information of the user's choosing," 153(43), or other physical elements of the facilities used to provide telephone service, like the trunks and switches, or the copper in the wires. What cable companies providing cable modem service and telephone companies providing telephone service "offer" is Internet service and telephone service respectively—the finished services, though they do so using (or "via") the discrete components composing the end product, including data transmission. Such functionally integrated components need not be described as distinct "offerings." In response, the dissent argues that the high-speed transmission component necessary to providing cable modem service is necessarily "offered" with Internet service because cable modem service is like the offering of pizza delivery service together with pizza, and the offering of puppies together with dog leashes. Post, at 1007-1008 (opinion of SCALIA, J.). The dissent's appeal to these analogies only underscores that the term "offer" is ambiguous in the way that we have described. The entire question is whether the products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes). That question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided, questions leaves to the Commission to resolve in the first instance. As the Commission has candidly recognized, "the question may not always be straightforward whether, on the one hand, an entity is providing a single information service with communications and computing components, or, on the other hand, is providing two distinct services, one of which is a telecommunications service." Universal Service Report 11530, ¶ 60. Because the term "offer" can sometimes refer to a single, finished product and sometimes to the "individual components in a package being offered" (depending on whether the components "still possess sufficient identity to be described *992 as separate objects," post, at 1006), the statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering. This leaves federal telecommunications policy in this technical and complex area to be set by the Commission, not by warring analogies. We also do not share the dissent's certainty that cable modem service is so obviously like pizza delivery service and the combination of dog leashes and dogs that the Commission could not reasonably have thought otherwise. Post, at 1007-1008. For example, unlike the transmission component of Internet service, delivery service and dog leashes are not integral components of the finished products (pizzas and pet dogs). One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet and the transmission always occurs in connection with information processing. In any event, we doubt that a statute that, for example, subjected offerors of "delivery" service (such as Federal Express and United Parcel Service) to common-carrier regulation would unambiguously require pizza-delivery companies to offer their delivery services on a common-carrier basis. 2 The Commission's traditional distinction between basic and enhanced service, see -977, also supports the conclusion that the Communications Act is ambiguous about whether cable companies "offer" telecommunications with cable modem service. Congress passed the definitions in the Communications Act against the background of this regulatory history, and we may assume that the parallel terms "telecommunications service" and "information service" substantially incorporated their meaning, as the Commission has held. See, e. g., In re Federal-State Joint Board on Universal Service, 12 FCC Rcd. 8776, 9179-9180, ¶ 788 *993 (noting that the "definition of enhanced services is substantially similar to the definition of information services" and that "all services previously considered `enhanced services' are `information services'"); The regulatory history in at least two respects confirms that the term "telecommunications service" is ambiguous. First, in the Computer II Order that established the terms "basic" and "enhanced" services, the Commission defined those terms functionally, based on how the consumer interacts with the provided information, just as the Commission did in the order below. See -977. As we have explained, Internet service is not "transparent in terms of its interaction with customer supplied information," Computer II Order 420, ¶ 96; the transmission occurs in connection with information processing. It was therefore consistent with the statute's terms for the Commission to assume that the parallel term "telecommunications service" in 47 U.S. C. 153(46) likewise describes a "pure" or "transparent" communications path not necessarily separately present, from the end user's perspective, in an integrated information-service offering. The Commission's application of the basic/enhanced-service distinction to non-facilities-based ISPs also supports this conclusion. The Commission has long held that "all those who provide some form of transmission services are not necessarily common carriers." Computer II Order 431, ¶ 122; see also For example, the Commission did not subject to common-carrier regulation those service providers that offered enhanced services over telecommunications facilities, but that did not themselves own the underlying facilities— so-called "non-facilities-based" providers. See Universal *994 Service Report 11530, ¶ 60. Examples of these services included database services in which a customer used telecommunications to access information, such as Dow Jones News and Lexis, as well as "value added networks," which lease wires from common carriers and provide transmission as well as protocol-processing service over those wires. See In re Amendment to Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry), 3 FCC Rcd. 1150, 1153, n. 23 (1988); These services "combin[ed] communications and computing components," yet the Commission held that they should "always be deemed enhanced" and therefore not subject to common-carrier regulation. Universal Service Report 11530, ¶ 60. Following this traditional distinction, the Commission in the Universal Service Report classified ISPs that leased rather than owned their transmission facilities as pure information-service providers. Respondents' statutory arguments conflict with this regulatory history. They claim that the Communications Act unambiguously classifies as telecommunications carriers all entities that use telecommunications inputs to provide information service. As respondent MCI concedes, this argument would subject to mandatory common-carrier regulation all information-service providers that use telecommunications as an input to provide information service to the public. Brief for Respondent MCI, Inc., 30. For example, it would subject to common-carrier regulation non-facilities-based ISPs that own no transmission facilities. See Universal Service Report 11532-11533, ¶ 66. Those ISPs provide consumers with transmission facilities used to connect to the Internet, see and so, under respondents' argument, necessarily "offer" telecommunications to consumers. Respondents' position that all such entities are necessarily "offering telecommunications" therefore entails mandatory common-carrier regulation of entities that the Commission *995 never classified as "offerors" of basic transmission service, and therefore common carriers, under the Computer II regime.[2] See Universal Service Report 11540, ¶ 81 (noting past Commission policy); Computer and Communications Industry We doubt that the parallel term "telecommunications service" unambiguously worked this abrupt shift in Commission policy. Respondents' analogy between cable companies that provide cable modem service and facilities-based enhanced-service providers—that is, enhanced-service providers who own the transmission facilities used to provide those services—fares no better. Respondents stress that under the Computer II rules the Commission regulated such providers more heavily than non-facilities-based providers. The Commission required, for example, local telephone companies that provided enhanced services to offer their wires on a common-carrier basis to competing enhanced-service providers. See, e. g., In re Amendment of Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry), 104 F. C. C. 2d 958, 964, ¶ 4 (1986) (hereinafter Computer III Order). Respondents argue that the Communications Act unambiguously requires the same treatment for cable companies because cable companies also own the facilities they use to provide cable modem service (and therefore information service). *996 We disagree. We think it improbable that the Communications Act unambiguously freezes in time the Computer II treatment of facilities-based information-service providers. The Act's definition of "telecommunications service" says nothing about imposing more stringent regulatory duties on facilities-based information-service providers. The definition hinges solely on whether the entity "offer[s] telecommunications for a fee directly to the public," 47 U.S. C. 153(46), though the Act elsewhere subjects facilities-based carriers to stricter regulation, see 251(c) (imposing various duties on facilities-based local telephone companies). In the Computer II rules, the Commission subjected facilities-based providers to common-carrier duties not because of the nature of the "offering" made by those carriers, but rather because of the concern that local telephone companies would abuse the monopoly power they possessed by virtue of the "bottleneck" local telephone facilities they owned. See Computer II Order 474-475, ¶¶ 229, 231; Computer III Order 968-969, ¶ 12; 535 U. S., at The differential treatment of facilities-based carriers was therefore a function not of the definitions of "enhanced-service" and "basic service," but instead of a choice by the Commission to regulate more stringently, in its discretion, certain entities that provided enhanced service. The Act's definitions, however, parallel the definitions of enhanced and basic service, not the facilities-based grounds on which that policy choice was based, and the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction. In fact, it has invited comment on whether it can and should do so. See In sum, if the Act fails unambiguously to classify nonfacilities-based information-service providers that use telecommunications inputs to provide an information service as "offer[ors]" of "telecommunications," then it also fails unambiguously *997 to classify facilities-based information-service providers as telecommunications-service offerors; the relevant definitions do not distinguish facilities-based and nonfacilities-based carriers. That silence suggests, instead, that the Commission has the discretion to fill the consequent statutory gap. C We also conclude that the Commission's construction was "a reasonable policy choice for the [Commission] to make" at 's second 467 U. S., Respondents argue that the Commission's construction is unreasonable because it allows any communications provider to "evade" common-carrier regulation by the expedient of bundling information service with telecommunications. Respondents argue that under the Commission's construction a telephone company could, for example, offer an information service like voice mail together with telephone service, thereby avoiding common-carrier regulation of its telephone service. We need not decide whether a construction that resulted in these consequences would be unreasonable because we do not believe that these results follow from the construction the Commission adopted. As we understand the Declaratory Ruling, the Commission did not say that any telecommunications service that is priced or bundled with an information service is automatically unregulated under Title II. The Commission said that a telecommunications input used to provide an information service that is not "separable from the data-processing capabilities of the service" and is instead "part and parcel of [the information service] and is integral to [the information service's] other capabilities" is not a telecommunications offering. Declaratory Ruling 4823, ¶ 39; see This construction does not leave all information-service offerings exempt from mandatory Title II regulation. "It is plain," for example, that a local telephone company "cannot *998 escape Title II regulation of its residential local exchange service simply by packaging that service with voice mail." Universal Service Report 11530, ¶ 60. That is because a telephone company that packages voice mail with telephone service offers a transparent transmission path—telephone service—that transmits information independent of the information-storage capabilities provided by voice mail. For instance, when a person makes a telephone call, his ability to convey and receive information using the call is only trivially affected by the additional voice-mail capability. Equally, were a telephone company to add a time-of-day announcement that played every time the user picked up his telephone, the "transparent" information transmitted in the ensuing call would be only trivially dependent on the information service the announcement provides. By contrast, the high-speed transmission used to provide cable modem service is a functionally integrated component of that service because it transmits data only in connection with the further processing of information and is necessary to provide Internet service. The Commission's construction therefore was more limited than respondents assume. Respondents answer that cable modem service does, in fact, provide "transparent" transmission from the consumer's perspective, but this argument, too, is mistaken. Respondents characterize the "information-service" offering of Internet access as consisting only of access to a cable company's e-mail service, its Web page, and the ability it provides consumers to create a personal Web page. When a consumer goes beyond those offerings and accesses content provided by parties other than the cable company, respondents argue, the consumer uses "pure transmission" no less than a consumer who purchases phone service together with voice mail. This argument, we believe, conflicts with the Commission's understanding of the nature of cable modem service, an understanding we find to be reasonable. When an end user *999 accesses a third-party's Web site, the Commission concluded, he is equally using the information service provided by the cable company that offers him Internet access as when he accesses the company's own Web site, its e-mail service, or his personal Web page. For example, as the Commission found below, part of the information service cable companies provide is access to DNS service. See A user cannot reach a third-party's Web site without DNS, which (among other things) matches the Web site address the end user types into his browser (or "clicks" on with his mouse) with the IP address of the Web page's host server. See P. Albitz & C. Liu, DNS and BIND 10 (For an Internet user, "DNS is a must. [N]early all of the Internet's network services use DNS. That includes the World Wide Web, electronic mail, remote terminal access, and file transfer"). It is at least reasonable to think of DNS as a "capability for acquiring retrieving, utilizing, or making available" Web site addresses and therefore part of the information service cable companies provide. 47 U.S. C. 153(20).[3] Similarly, the Internet service provided by cable companies facilitates access to third-party Web pages by offering consumers the ability to store, or "cache," popular content on local computer servers. See Declaratory Ruling 4810, ¶ 17, and n. 76. Cacheing obviates the need for the end user to download anew information from third-party *1000 Web sites each time the consumer attempts to access them, thereby increasing the speed of information retrieval. In other words, subscribers can reach third-party Web sites via "the World Wide Web, and browse their contents, [only] because their service provider offers the `capability for acquiring, [storing] retrieving [and] utilizing information.'" Universal Service Report 11538, ¶ 76 (quoting 47 U.S. C. 153(20)). "The service that Internet access providers offer to members of the public is Internet access," Universal Service Report 11539, ¶ 79, not a transparent ability (from the end user's perspective) to transmit information. We therefore conclude that the Commission's construction was reasonable. V Respondent MCI, Inc., urges that the Commission's treatment of cable modem service is inconsistent with its treatment of DSL service, see and therefore is an arbitrary and capricious deviation from agency policy. See 5 U.S. C. 706(2)(A). MCI points out that when local telephone companies began to offer Internet access through DSL technology in addition to telephone service, the Commission applied its Computer II facilities-based classification to them and required them to make the telephone lines used to transmit DSL service available to competing ISPs on nondiscriminatory, common-carrier terms. See ; In re Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd. 24011, 24030-24031, ¶¶ 36-37 (1998) (hereinafter Wireline Order) (classifying DSL service as a telecommunications service). MCI claims that the Commission's decision not to regulate cable companies similarly under Title II is inconsistent with its DSL policy. We conclude, however, that the Commission provided a reasoned explanation for treating cable modem service differently *1001 from DSL service. As we have already noted, see the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.[4] It has done so here. The traditional reason for its Computer II common-carrier treatment of facilities-based carriers (including DSL carriers), as the Commission explained, was "that the telephone network [was] the primary, if not exclusive, means through which information service providers can gain access to their customers." Declaratory Ruling 4825, ¶ 44 (emphasis in original; internal quotation marks omitted). The Commission applied the same treatment to DSL service based on that history, rather than on an analysis of contemporaneous market conditions. See Wireline Order 24031, ¶ 37 (noting DSL carriers' "continuing obligation" to offer their transmission facilities to competing ISPs on nondiscriminatory terms). The Commission in the order under review, by contrast, concluded that changed market conditions warrant different treatment of facilities-based cable companies providing Internet access. Unlike at the time of Computer II, substitute forms of Internet transmission exist today: "[R]esidential high-speed access to the Internet is evolving over multiple electronic platforms, including wireline, cable, terrestrial wireless and satellite." Declaratory Ruling 4802, ¶ 6; see also U. S. Telecom The Commission concluded that "`broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.'" Declaratory Ruling 4802, ¶ 5. *1002 This, the Commission reasoned, warranted treating cable companies unlike the facilities-based enhanced-service providers of the past. We find nothing arbitrary about the Commission's providing a fresh analysis of the problem as applied to the cable industry, which it has never subjected to these rules. This is adequate rational justification for the Commission's conclusions. Respondents argue, in effect, that the Commission's justification for exempting cable modem service providers from common-carrier regulation applies with similar force to DSL providers. We need not address that argument. The Commission's decision appears to be a first step in an effort to reshape the way the Commission regulates information-service providers; that may be why it has tentatively concluded that DSL service provided by facilities-based telephone companies should also be classified solely as an information service. See In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 17 FCC Rcd. 3019, 3030, ¶ 20 The Commission need not immediately apply the policy reasoning in the Declaratory Ruling to all types of information-service providers. It apparently has decided to revisit its longstanding Computer II classification of facilities-based information-service providers incrementally. Any inconsistency between the order under review and the Commission's treatment of DSL service can be adequately addressed when the Commission fully reconsiders its treatment of DSL service and when it decides whether, pursuant to its ancillary Title I jurisdiction, to require cable companies to allow independent ISPs access to their facilities. See and this page. We express no view on those matters. In particular, we express no view on how the Commission should, or lawfully may, classify DSL service. * * * The questions the Commission resolved in the order under review involve a "subject matter [that] is technical, complex, *1003 and dynamic." Gulf The Commission is in a far better position to address these questions than we are. Nothing in the Communications Act or the Administrative Procedure Act makes unlawful the Commission's use of its expert policy judgment to resolve these difficult questions. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Brennan

majority

Moses H. Cone Memorial Hospital v. Mercury Constr. Corp.

https://www.courtlistener.com/opinion/110873/moses-h-cone-memorial-hospital-v-mercury-constr-corp/

https://www.courtlistener.com/api/rest/v3/clusters/110873/

1982-029

This case, commenced as a petition for an order to compel arbitration under § 4 of the United States Arbitration Act of 1925 (Arbitration Act or Act), 9 U.S. C. § 4, presents the question whether, in light of the policies of the Act and of our decisions in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), and Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978), the District Court for the Middle District of North Carolina properly stayed this diversity action pending resolution of a concurrent state-court suit. The Court of Appeals for the Fourth Circuit reversed the stay. 656 F.2d 933, rehearing denied, 664 F.2d 936 (1981). We granted certiorari. 455 U.S. 937 (1982). We affirm. I Petitioner Moses H. Cone Memorial Hospital (Hospital) is located in Greensboro, N. C. Respondent Mercury Construction Corp. (Mercury), a construction contractor, has its principal place of business in Alabama. In July 1975, Mercury and the Hospital entered into a contract for the construction of additions to the Hospital building. The contract, drafted by representatives of the Hospital, included provisions for resolving disputes arising out of the contract or its breach. All disputes involving interpretation of the contract or performance of the construction work were to be referred in the first instance to J. N. Pease Associates (Architect), an independent architectural firm hired by the Hospital to design and oversee the construction project. With certain *5 stated exceptions,[1] any dispute decided by the Architect (or not decided by it within a stated time) could be submitted by either party to binding arbitration under a broad arbitration clause in the contract: "All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof." App. 29-30. The contract also specified the time limits for arbitration demands.[2] Construction on the project began in July 1975. Performance was to be completed by October 1979.[3] In fact, construction was substantially completed in February 1979, and final inspections were made that June. *6 At a meeting in October 1977 (during construction), attended by representatives of Mercury, the Hospital, and the Architect, Mercury agreed, at the Architect's request, to withhold its claims for delay and impact costs (i. e., claims for extended overhead or increase in construction costs due to delay or inaction by the Hospital) until the work was substantially completed. On this record, the Hospital does not contest the existence of this agreement, although it asserts that the Architect lacked authority to agree to a delay in presentation of claims or to entertain claims after the contract work was completed. In January 1980, Mercury submitted to the Architect its claims for delay and impact costs. Mercury and the Architect discussed the claims over several months, substantially reducing the amount of the claims. According to the Hospital, it first learned of the existence of Mercury's claims in April 1980; its lawyers assumed active participation in the claim procedure in May. The parties differ in their characterizations of the events of the next few months — whether there were "ongoing negotiations," or merely an "investigation" by the Hospital. In any event, it appears from the record that lawyers for the Hospital requested additional information concerning Mercury's claims. As a result, on August 12, 1980, Mercury gave a detailed presentation of its claims at a meeting attended by Mercury's representatives and lawyers, the Hospital's representatives and lawyers, and representatives of the Architect. Mercury agreed to send copies of its files to an expert hired by the Hospital, and the parties agreed to meet again on October 13. On October 6, Mercury's counsel telephoned the Hospital's counsel to confirm that the scheduled meeting would go forward. The Hospital's counsel said he would call back the next day. When he did, he informed Mercury's counsel that the Hospital would pay nothing on Mercury's claim. He also said that the Hospital intended to file a declaratory judgment action in North Carolina state court. *7 True to its word, the Hospital filed an action on the morning of October 8 in the Superior Court of Guilford County, N. C., naming Mercury and the Architect as defendants. The complaint alleged that Mercury's claim was without factual or legal basis and that it was barred by the statute of limitations. It alleged that Mercury had lost any right to arbitration under the contract due to waiver, laches, estoppel, and failure to make a timely demand for arbitration. The complaint also alleged various delinquencies on the part of the Architect. As relief, the Hospital sought a declaration that there was no right to arbitration; a stay of arbitration; a declaration that the Hospital bore no liability to Mercury; and a declaration that if the Hospital should be found liable in any respect to Mercury, it would be entitled to indemnity from the Architect. The complaint was served on Mercury on October 9. On that same day, Mercury's counsel mailed a demand for arbitration. On October 15, without notice to Mercury, the Hospital obtained an ex parte injunction from the state court forbidding Mercury to take any steps directed toward arbitration. Mercury objected, and the stay was dissolved on October 27. As soon as the stay was lifted, Mercury filed the present action in the District Court, seeking an order compelling arbitration under § 4 of the Arbitration Act, 9 U.S. C. § 4.[4] Jurisdiction was based on diversity of citizenship. On the Hospital's motion, the District Court stayed Mercury's federal-court suit pending resolution of the state-court suit because the two suits involved the identical issue of the arbitrability of Mercury's claims. App. to Pet. for Cert. A-38. *8 Mercury sought review of the District Court's stay by both a notice of appeal and a petition for mandamus. A panel of the Court of Appeals for the Fourth Circuit heard argument in the case, but before the panel issued any decision, the court informed the parties that it would consider the case en banc. After reargument, the en banc court held that it had appellate jurisdiction over the case under 28 U.S. C. § 1291. It reversed the District Court's stay order and remanded the case to the District Court with instructions for entry of an order to arbitrate. II Before we address the propriety of the District Judge's stay order, we must first decide whether that order was appealable to the Court of Appeals under 28 U.S. C. § 1291.[5] Mercury sought appellate review through two alternative routes — a notice of appeal under § 1291, and a petition for mandamus under the All Writs Act, 28 U.S. C. § 1651.[6] Mercury expressly stated that its appeal was based only on § 1291, and not on 28 U.S. C. § 1292 (relating to interlocutory appeals). The Hospital contends that the order appealed from was not a "final decisio[n]" within § 1291. We *9 disagree and hold that the stay order was final for purposes of appellate jurisdiction. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713 (1962), is instructive in this regard. There the plaintiff brought a federal suit challenging the constitutionality of a state statute. The District Judge declined to convene a three-judge court and stayed the federal suit under the Pullman abstention doctrine.[7] We held that the District Court's action was final and therefore reviewable by the Court of Appeals, stating: "The Court of Appeals properly rejected the argument that the order of the District Court `was not final and hence unappealable under 28 U.S. C. §§ 1291, 1292,' pointing out that `[a]ppellant was effectively out of court.' " 370 U.S., at 715, n. 2.[8] *10 Here, the argument for finality of the District Court's order is even clearer. A district court stay pursuant to Pullman abstention is entered with the expectation that the federal litigation will resume in the event that the plaintiff does not obtain relief in state court on state-law grounds.[9] Here, by contrast, the District Court predicated its stay order on its conclusion that the federal and state actions involved "the identical issue of arbitrability of the claims of Mercury Construction Corp. against the Moses H. Cone Memorial Hospital." App. to Pet. for Cert. A-38. That issue of arbitrability was the only substantive issue present in the federal suit. Hence, a stay of the federal suit pending resolution of the state suit meant that there would be no further litigation in the federal forum; the state court's judgment on the issue would be res judicata.[10] Thus, here, even more surely than in Idlewild, Mercury was "effectively out of court." Hence, as the Court of Appeals held, this stay order amounts to a dismissal of the suit.[11] *11 In any event, if the District Court order were not final for appealability purposes, it would nevertheless be appealable within the exception to the finality rule under Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949). The factors required to show finality under this exception have been summarized as follows: "To come within the `small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal *12 from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted).[12] There can be no dispute that this order meets the second and third of these criteria. An order that amounts to a refusal to adjudicate the merits plainly presents an important issue separate from the merits.[13] For the same reason, this order would be entirely unreviewable if not appealed now. Once the state court decided the issue of arbitrability, the federal court would be bound to honor that determination as res judicata. The Hospital contends nevertheless that the District Court's stay order did not meet the first of the criteria, namely that it "conclusively determine the disputed question." But this is true only in the technical sense that every order short of a final decree is subject to reopening at the discretion of the district judge.[14] In this case, however, there is *13 no basis to suppose that the District Judge contemplated any reconsideration of his decision to defer to the parallel state-court suit. He surely would not have made that decision in the first instance unless he had expected the state court to resolve all relevant issues adequately. See Part IV-E, infra. It is not clear why the judge chose to stay the case rather than to dismiss it outright; for all that the record shows, there was no reason other than the form of the Hospital's motion. Whatever the reason, however, the practical effect of his order was entirely the same for present purposes, and the order was appealable. III We turn now to the principal issue to be addressed, namely, the propriety of the District Court's decision to stay this federal suit out of deference to the parallel litigation brought in state court. Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), provides persuasive guidance in deciding this question. A Colorado River involved the effect of the McCarran Amendment, 66 Stat. 560, 43 U.S. C. § 666, on the existence and exercise of federal-court jurisdiction to adjudicate federal water rights, 28 U.S. C. § 1345. The Amendment waives the Government's sovereign immunity to permit the joinder of the United States in some state-court suits for the adjudication of water rights. In Colorado River, however, the Government proceeded in Federal District Court, bringing suit against some 1,000 nonfederal water users, seeking a declaration of the water rights of certain federal entities and Indian tribes. Shortly thereafter, a defendant in that suit *14 sought to join the United States in a state-court proceeding for the comprehensive adjudication and administration of all water rights within the river system that was the subject of the federal-court suit. The District Court dismissed the federal suit, holding that the abstention doctrine required deference to the state-court proceedings. The Court of Appeals for the Tenth Circuit reversed, holding that the suit of the United States was within the District Court's jurisdiction under 28 U.S. C. § 1345 and that abstention was inappropriate. We reversed the judgment of the Court of Appeals and affirmed the judgment of the District Court dismissing the complaint. We began our analysis by examining the abstention doctrine in its various forms. We noted: "Abstention from the exercise of federal jurisdiction is the exception, not the rule. `The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.' "[15] After canvassing the three categories of abstention, we concluded that none of them applied to the case at hand. 424 U.S., at 813-817.[16] Nevertheless, we held that the District Court's dismissal was proper on another ground — one resting not on considerations of state-federal comity or on avoidance of constitutional *15 decisions, as does abstention, but on "considerations of `[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' "[17] We noted that " `the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,' " and that the federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them."[18] We continued: "Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist." Id., at 818. We declined to prescribe a hard-and-fast rule for dismissals of this type, but instead described some of the factors relevant to the decision. "It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. . . . In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums. No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction *16 and the combination of factors counselling against that exercise is required. Only the clearest of justifications will warrant dismissal." Id., at 818-819 (emphasis added; citations omitted). As this passage makes clear, the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case. Colorado River itself illustrates this principle in operation. By far the most important factor in our decision to approve the dismissal there was the "clear federal policy . . . [of] avoidance of piecemeal adjudication of water rights in a river system," id., at 819, as evinced in the McCarran Amendment. We recognized that the Amendment represents Congress' judgment that the field of water rights is one peculiarly appropriate for comprehensive treatment in the forums having the greatest experience and expertise, assisted by state administrative officers acting under the state courts. Id., at 819-820. In addition, we noted that other factors in the case tended to support dismissal — the absence of any substantial progress in the federal-court litigation; the presence in the suit of extensive rights governed by state law; the geographical inconvenience of the federal forum; and the Government's previous willingness to litigate similar suits in state court. Id., at 820. B Before discussing the application of Colorado River's exceptional-circumstances test, we must address the Hospital's argument that that test was undermined by our subsequent decision in Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978). We find no merit in this argument for at least two reasons. *17 The Hospital relies on the opinion of JUSTICE REHNQUIST, announcing the judgment of the Court. The Hospital argues that JUSTICE REHNQUIST's opinion, if not expressly overruling Colorado River, at least modifies its holding substantially. But it is clear that a majority of the Court reaffirmed the Colorado River test in Calvert. JUSTICE REHNQUIST'S opinion commanded only four votes. It was opposed by the dissenting opinion, in which four Justices concluded that the Calvert District Court's stay was impermissible under Colorado River. 437 U. S., at 668-669, 672-674 (BRENNAN, J., joined by BURGER, C. J., and MARSHALL and POWELL, JJ., dissenting). JUSTICE BLACKMUN, although concurring in the judgment, agreed with the dissent that Colorado River's exceptional-circumstances test was controlling; he voted to remand to permit the District Court to apply the Colorado River factors in the first instance.[19] 437 U. S., at 667-668. On remand, the Court of Appeals correctly recognized that the four dissenting Justices and JUSTICE BLACKMUN formed a majority to require application of the Colorado River test. Calvert Fire Insurance Co. v. Will, 586 F.2d 12 (CA7 1978).[20] *18 Even on the basis of JUSTICE REHNQUIST's opinion, however, there is an obvious distinction between Calvert and this case. The key to Calvert was the standard for issuance of a writ of mandamus under 28 U.S. C. § 1651.[21] As JUSTICE REHNQUIST stressed, such extraordinary writs are used in aid of appellate jurisdiction only to confine an inferior court to a lawful exercise of its prescribed authority, or to compel it to exercise its authority when it is its duty to do so. The movant must show that his right to the writ is clear and indisputable. 437 U.S., at 661-662, 664, 665-666 (opinion of REHNQUIST, J.). JUSTICE REHNQUIST concluded that the movant in Calvert had failed to meet this burden. At the same time, he noted that the movant might have succeeded on a proper appeal. Id., at 665. In this case we have held that the Court of Appeals did have appellate jurisdiction; it properly exercised that jurisdiction to find that the District Court's stay was impermissible under Colorado River. The Hospital further contends that Calvert requires reversal here because the opinions of JUSTICE REHNQUIST and *19 JUSTICE BLACKMUN require greater deference to the discretion of the District Court than was given by the Court of Appeals in this case. Under both Calvert and Colorado River, of course, the decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance. Yet to say that the district court has discretion is not to say that its decision is unreviewable; such discretion must be exercised under the relevant standard prescribed by this Court. In this case, the relevant standard is Colorado River's exceptional-circumstances test, as elucidated by the factors discussed in that case. As we shall now explain, we agree with the Court of Appeals that the District Court in this case abused its discretion in granting the stay. IV Applying the Colorado River factors to this case, it is clear that there was no showing of the requisite exceptional circumstances to justify the District Court's stay. The Hospital concedes that the first two factors mentioned in Colorado River are not present here. There was no assumption by either court of jurisdiction over any res or property, nor is there any contention that the federal forum was any less convenient to the parties than the state forum. The remaining factors — avoidance of piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums — far from supporting the stay, actually counsel against it. A There is no force here to the consideration that was paramount in Colorado River itself — the danger of piecemeal litigation. The Hospital points out that it has two substantive disputes here — one with Mercury, concerning Mercury's claim for delay and impact costs, and the other with the Architect, concerning the Hospital's claim for indemnity for any liability it may have to Mercury. The latter dispute cannot be sent *20 to arbitration without the Architect's consent, since there is no arbitration agreement between the Hospital and the Architect. It is true, therefore, that if Mercury obtains an arbitration order for its dispute, the Hospital will be forced to resolve these related disputes in different forums. That misfortune, however, is not the result of any choice between the federal and state courts; it occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.[22] Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.[23] If the dispute between Mercury and the Hospital is arbitrable under the Act, then the Hospital's two disputes will be resolved separately — one in arbitration, and the other (if at all) in state-court litigation. Conversely, if the dispute between Mercury and the Hospital is not arbitrable, then both disputes will be resolved in state court. But neither of those two outcomes depends at all on which court decides the question of arbitrability. Hence, a decision to allow that issue to be decided in federal rather than state court does not cause piecemeal resolution of the parties' underlying disputes. Although *21 the Hospital will have to litigate the arbitrability issue in federal rather than state court, that dispute is easily severable from the merits of the underlying disputes. B The order in which the concurrent tribunals obtained and exercised jurisdiction cuts against, not for, the District Court's stay in this case. The Hospital argues that the stay was proper because the state-court suit was filed some 19 days before the federal suit. In the first place, this argument disregards the obvious reason for the Hospital's priority in filing. An indispensable element of Mercury's cause of action under § 4 for an arbitration order is the Hospital's refusal to arbitrate. See n. 27, infra. That refusal did not occur until less than a day before the Hospital filed its state suit. Hence, Mercury simply had no reasonable opportunity to file its § 4 petition first. Moreover, the Hospital succeeded in obtaining an ex parte injunction from the state court forbidding Mercury to take any steps to secure arbitration.[24] Mercury filed its § 4 petition the same day that the injunction was dissolved.[25] That aside, the Hospital's priority argument gives too mechanical a reading to the "priority" element of the Colorado River balance. This factor, as with the other Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand. Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. Colorado River illustrates *22 this point well. There, the federal suit was actually filed first. Nevertheless, we pointed out as a factor favoring dismissal "the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss." 424 U.S., at 820. Here, the opposite was true. It was the state-court suit in which no substantial proceedings (excepting only the abortive temporary injunction) had taken place at the time of the decision to stay. In the federal suit, by contrast, the parties had taken most of the steps necessary to a resolution of the arbitrability issue.[26] In realistic terms, the federal suit was running well ahead of the state suit at the very time that the District Court decided to refuse to adjudicate the case. This refusal to proceed was plainly erroneous in view of Congress' clear intent, in the Arbitration Act, to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible. The Act provides two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S. C. § 3, and an affirmative order to engage in arbitration, § 4. Both of these sections call for an expeditious and summary hearing, with only restricted inquiry into factual issues.[27] Assuming that the state court would *23 have granted prompt relief to Mercury under the Act,[28] there still would have been an inevitable delay as a result of the District Court's stay. The stay thus frustrated the statutory policy of rapid and unobstructed enforcement of arbitration agreements. C Besides the four factors expressly discussed in Colorado River, there is another that emerges from Calvert — the fact that federal law provides the rule of decision on the merits. The state-versus-federal-law factor was of ambiguous relevance in Colorado River.[29] In Calvert, however, both the four-vote dissenting opinion and JUSTICE BLACKMUN's opinion concurring in the judgment pointed out that the case involved issues of federal law. 437 U.S., at 667 (BLACKMUN, J., concurring in judgment); id., at 668-677 (BRENNAN, J., *24 dissenting). See also Colorado River, 424 U. S., at 815, n. 21. It is equally apparent that this case involves federal issues. The basic issue presented in Mercury's federal suit was the arbitrability of the dispute between Mercury and the Hospital. Federal law in the terms of the Arbitration Act governs that issue in either state or federal court. Section 2 is the primary substantive provision of the Act, declaring that a written agreement to arbitrate "in any maritime transaction or a contract evidencing a transaction involving commerce. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. § 2.[30] Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. In Prima Paint Corp. v. Flood & Conklin Mfg. Corp., 388 U.S. 395 (1967), for example, the parties had signed a contract containing an arbitration clause, but one party alleged that there had been fraud in the inducement of the entire contract (although the alleged fraud did not go to the arbitration clause in particular). The issue before us was whether the issue of fraud in the inducement was itself an arbitrable controversy. We held that the language and policies of the Act required the conclusion that the fraud issue was arbitrable. Id., at 402-404. Although our holding in Prima Paint extended only to the specific issue presented, the Courts of Appeals have since consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues *25 should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.[31] To be sure, the source-of-law factor has less significance here than in Calvert, since the federal courts' jurisdiction to enforce the Arbitration Act is concurrent with that of the state courts.[32] But we emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist "exceptional" circumstances, the "clearest of justifications," that can suffice under Colorado *26 River to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender, see n. 29, supra, the presence of federal-law issues must always be a major consideration weighing against surrender.[33] D Finally, in this case an important reason against allowing a stay is the probable inadequacy of the state-court proceeding to protect Mercury's rights. We are not to be understood to impeach the competence or procedures of the North Carolina courts. Moreover, state courts, as much as federal courts, are obliged to grant stays of litigation under § 3 of the Arbitration Act.[34] It is less clear, however, whether the same is true of an order to compel arbitration under § 4 of the Act.[35] We need not resolve that question here; it suffices to say that there was, at a minimum, substantial room for doubt that Mercury could obtain from the state court an order compelling *27 the Hospital to arbitrate.[36] In many cases, no doubt, a § 3 stay is quite adequate to protect the right to arbitration. But in a case such as this, where the party opposing arbitration is the one from whom payment or performance is sought, a stay of litigation alone is not enough. It leaves the recalcitrant party free to sit and do nothing — neither to litigate nor to arbitrate. If the state court stayed litigation pending arbitration but declined to compel the Hospital to arbitrate, Mercury would have no sure way to proceed with its claims except to return to federal court to obtain a § 4 order — a pointless and wasteful burden on the supposedly summary and speedy procedures prescribed by the Arbitration Act. E The Hospital argues that the Colorado River test is somehow inapplicable because in this case the District Court merely stayed the federal litigation rather than dismissing the suit outright, as in Colorado River. It contends that Mercury remains free to seek to reopen the federal suit on a showing that the state suit has failed to adjudicate its rights, and that a stay is less onerous than a dismissal. We have already rejected this distinction, for purposes of this case, in discussing appellate jurisdiction. Supra, at 12-13. We reject it in this context for the same reasons. *28 We have no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado River counsels in favor of deferring to a parallel state-court suit.[37] We can say, however, that a stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. See Part IV-D, supra; McNeese v. Board of Education, 373 U.S. 668, 674-676 (1963). Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4247, pp. 517-519 (1978). Moreover, assuming that for some unexpected reason the state forum does turn out to be inadequate in some respect, the Hospital's argument fails to make out any genuine difference between a stay and a dismissal. It is true that Mercury could seek to return to federal court if it proved necessary; but that would be equally true if the District Court had dismissed the case. It is highly questionable whether this Court would have approved a dismissal of a federal suit in Colorado River (or in any of the abstention cases, see supra, at 14) if the federal courts did not remain open to a dismissed plaintiff who later demonstrated the inadequacy of the state forum. *29 V In addition to reversing the District Court's stay, the Court of Appeals decided that the underlying contractual dispute between Mercury and the Hospital is arbitrable under the Arbitration Act and the terms of the parties' arbitration agreement. It reversed the District Court's judgment and remanded the case "with directions to proceed in conformity herewith." 656 F.2d, at 946. In effect, the Court of Appeals directed the District Court to enter a § 4 order to arbitrate. In this Court, the Hospital does not contest the substantive correctness of the Court of Appeals' holding on arbitrability. It does raise several objections to the procedures the Court of Appeals used in considering and deciding this case. In particular, it points out that the only issue formally appealed to the Court of Appeals was the propriety of the District Court's stay order. Ordinarily, we would not expect the Court of Appeals to pass on issues not decided in the District Court. In the present case, however, we are not disposed to disturb the court's discretion in its handling of the case in view of the special interests at stake and the apparent lack of any prejudice to the parties. Title 28 U.S. C. § 2106 gives a court of appeals some latitude in entering an order to achieve justice in the circumstances. The Arbitration Act calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses. The Court of Appeals had in the record full briefs and evidentiary submissions from both parties on the merits of arbitrability, and held that there were no disputed issues of fact requiring a jury trial before a § 4 order could issue. Under these circumstances, the court acted within its authority in deciding the legal issues presented in order to facilitate the prompt arbitration that Congress envisaged. Affirmed.

This case, commenced as a petition for an order to compel arbitration under 4 of the United States Arbitration Act of 1925 (Arbitration Act or Act), 9 U.S. C. 4, presents the question whether, in light of the policies of the Act and of our decisions in Colorado Water Conservation and the District Court for the Middle District of North Carolina properly stayed this diversity action pending resolution of a concurrent state-court suit. The Court of Appeals for the Fourth Circuit reversed the stay. We granted certiorari. We affirm. I Petitioner Moses H. Cone Memorial Hospital (Hospital) is located in Greensboro, N. C. Respondent Mercury Construction Corp. (Mercury), a construction contractor, has its principal place of business in Alabama. In July 1975, Mercury and the Hospital entered into a contract for the construction of additions to the Hospital building. The contract, drafted by representatives of the Hospital, included provisions for resolving disputes arising out of the contract or its breach. All disputes involving interpretation of the contract or performance of the construction work were to be referred in the first instance to J. N. Pease Associates (Architect), an independent architectural firm hired by the Hospital to design and oversee the construction project. With certain *5 stated exceptions,[1] any dispute decided by the Architect (or not decided by it within a stated time) could be submitted by either party to binding arbitration under a broad arbitration clause in the contract: "All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof." App. -30. The contract also specified the time limits for arbitration demands.[2] Construction on the project began in July 1975. Performance was to be completed by October 1979.[3] In fact, construction was substantially completed in February 1979, and final inspections were made that June. *6 At a meeting in October 1977 (during construction), attended by representatives of Mercury, the Hospital, and the Architect, Mercury agreed, at the Architect's request, to withhold its claims for delay and impact costs (i. e., claims for extended overhead or increase in construction costs due to delay or inaction by the Hospital) until the work was substantially completed. On this record, the Hospital does not contest the existence of this agreement, although it asserts that the Architect lacked authority to agree to a delay in presentation of claims or to entertain claims after the contract work was completed. In January 1980, Mercury submitted to the Architect its claims for delay and impact costs. Mercury and the Architect discussed the claims over several months, substantially reducing the amount of the claims. According to the Hospital, it first learned of the existence of Mercury's claims in April 1980; its lawyers assumed active participation in the claim procedure in May. The parties differ in their characterizations of the events of the next few months — whether there were "ongoing negotiations," or merely an "investigation" by the Hospital. In any event, it appears from the record that lawyers for the Hospital requested additional information concerning Mercury's claims. As a result, on August 12, 1980, Mercury gave a detailed presentation of its claims at a meeting attended by Mercury's representatives and lawyers, the Hospital's representatives and lawyers, and representatives of the Architect. Mercury agreed to send copies of its files to an expert hired by the Hospital, and the parties agreed to meet again on October 13. On October 6, Mercury's counsel telephoned the Hospital's counsel to confirm that the scheduled meeting would go forward. The Hospital's counsel said he would call back the next day. When he did, he informed Mercury's counsel that the Hospital would pay nothing on Mercury's claim. He also said that the Hospital intended to file a declaratory judgment action in North Carolina state court. *7 True to its word, the Hospital filed an action on the morning of October 8 in the Superior Court of Guilford County, N. C., naming Mercury and the Architect as defendants. The complaint alleged that Mercury's claim was without factual or legal basis and that it was barred by the statute of limitations. It alleged that Mercury had lost any right to arbitration under the contract due to waiver, laches, estoppel, and failure to make a timely demand for arbitration. The complaint also alleged various delinquencies on the part of the Architect. As relief, the Hospital sought a declaration that there was no right to arbitration; a stay of arbitration; a declaration that the Hospital bore no liability to Mercury; and a declaration that if the Hospital should be found liable in any respect to Mercury, it would be entitled to indemnity from the Architect. The complaint was served on Mercury on October 9. On that same day, Mercury's counsel mailed a demand for arbitration. On October 15, without notice to Mercury, the Hospital obtained an ex parte injunction from the state court forbidding Mercury to take any steps directed toward arbitration. Mercury objected, and the stay was dissolved on October 27. As soon as the stay was lifted, Mercury filed the present action in the District Court, seeking an order compelling arbitration under 4 of the Arbitration Act, 9 U.S. C. 4.[4] Jurisdiction was based on diversity of citizenship. On the Hospital's motion, the District Court stayed Mercury's federal-court suit pending resolution of the state-court suit because the two suits involved the identical issue of the arbitrability of Mercury's claims. App. to Pet. for Cert. A-38. *8 Mercury sought review of the District Court's stay by both a notice of appeal and a petition for mandamus. A panel of the Court of Appeals for the Fourth Circuit heard argument in the case, but before the panel issued any decision, the court informed the parties that it would consider the case en banc. After reargument, the en banc court held that it had appellate jurisdiction over the case under 28 U.S. C. 11. It reversed the District Court's stay order and remanded the case to the District Court with instructions for entry of an order to arbitrate. II Before we address the propriety of the District Judge's stay order, we must first decide whether that order was appealable to the Court of Appeals under 28 U.S. C. 11.[5] Mercury sought appellate review through two alternative routes — a notice of appeal under 11, and a petition for mandamus under the All Writs Act, 28 U.S. C. 1651.[6] Mercury expressly stated that its appeal was based only on 11, and not on 28 U.S. C. 12 (relating to interlocutory appeals). The Hospital contends that the order appealed from was not a "final decisio[n]" within 11. We *9 disagree and hold that the stay order was final for purposes of appellate jurisdiction. Idlewild Liquor is instructive in this regard. There the plaintiff brought a federal suit challenging the constitutionality of a state statute. The District Judge declined to convene a three-judge court and stayed the federal suit under the Pullman abstention doctrine.[7] We held that the District Court's action was final and therefore reviewable by the Court of Appeals, stating: "The Court of Appeals properly rejected the argument that the order of the District Court `was not final and hence unappealable under 28 U.S. C. 11, 12,' pointing out that `[a]ppellant was effectively out of court.' " n. 2.[8] *10 Here, the argument for finality of the District Court's order is even clearer. A district court stay pursuant to Pullman abstention is entered with the expectation that the federal litigation will resume in the event that the plaintiff does not obtain relief in state court on state-law grounds.[9] Here, by contrast, the District Court predicated its stay order on its conclusion that the federal and state actions involved "the identical issue of arbitrability of the claims of Mercury Construction Corp. against the Moses H. Cone Memorial Hospital." App. to Pet. for Cert. A-38. That issue of arbitrability was the only substantive issue present in the federal suit. Hence, a stay of the federal suit pending resolution of the state suit meant that there would be no further litigation in the federal forum; the state court's judgment on the issue would be res judicata.[10] Thus, here, even more surely than in Idlewild, Mercury was "effectively out of court." Hence, as the Court of Appeals held, this stay order amounts to a dismissal of the suit.[11] *11 In any event, if the District Court order were not final for appealability purposes, it would nevertheless be appealable within the exception to the finality rule under The factors required to show finality under this exception have been summarized as follows: "To come within the `small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal *12 from a final judgment." Coopers &[12] There can be no dispute that this order meets the second and third of these criteria. An order that amounts to a refusal to adjudicate the merits plainly presents an important issue separate from the merits.[13] For the same reason, this order would be entirely unreviewable if not appealed now. Once the state court decided the issue of arbitrability, the federal court would be bound to honor that determination as res judicata. The Hospital contends nevertheless that the District Court's stay order did not meet the first of the criteria, namely that it "conclusively determine the disputed question." But this is true only in the technical sense that every order short of a final decree is subject to reopening at the discretion of the district judge.[14] In this case, however, there is *13 no basis to suppose that the District Judge contemplated any reconsideration of his decision to defer to the parallel state-court suit. He surely would not have made that decision in the first instance unless he had expected the state court to resolve all relevant issues adequately. See Part IV-E, infra. It is not clear why the judge chose to stay the case rather than to dismiss it outright; for all that the record shows, there was no reason other than the form of the Hospital's motion. Whatever the reason, however, the practical effect of his order was entirely the same for present purposes, and the order was appealable. III We turn now to the principal issue to be addressed, namely, the propriety of the District Court's decision to stay this federal suit out of deference to the parallel litigation brought in state court. Colorado Water Conservation provides persuasive guidance in deciding this question. A Colorado involved the effect of the McCarran Amendment, 43 U.S. C. 666, on the existence and exercise of federal-court jurisdiction to adjudicate federal water rights, 28 U.S. C. 1345. The Amendment waives the Government's sovereign immunity to permit the joinder of the United States in some state-court suits for the adjudication of water rights. In Colorado however, the Government proceeded in Federal District Court, bringing suit against some 1,000 nonfederal water users, seeking a declaration of the water rights of certain federal entities and Indian tribes. Shortly thereafter, a defendant in that suit *14 sought to join the United States in a state-court proceeding for the comprehensive adjudication and administration of all water rights within the river system that was the subject of the federal-court suit. The District Court dismissed the federal suit, holding that the abstention doctrine required deference to the state-court proceedings. The Court of Appeals for the Tenth Circuit reversed, holding that the suit of the United States was within the District Court's jurisdiction under 28 U.S. C. 1345 and that abstention was inappropriate. We reversed the judgment of the Court of Appeals and affirmed the judgment of the District Court dismissing the complaint. We began our analysis by examining the abstention doctrine in its various forms. We noted: "Abstention from the exercise of federal jurisdiction is the exception, not the rule. `The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.' "[15] After canvassing the three categories of abstention, we concluded that none of them applied to the case at -817.[16] Nevertheless, we held that the District Court's dismissal was proper on another ground — one resting not on considerations of state-federal comity or on avoidance of constitutional *15 decisions, as does abstention, but on "considerations of `[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' "[17] We noted that " `the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,' " and that the federal courts have a "virtually unflagging obligation to exercise the jurisdiction given them."[18] We continued: "Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist." We declined to prescribe a hard-and-fast rule for dismissals of this type, but instead described some of the factors relevant to the decision. "It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums. No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction *16 and the combination of factors counselling against that exercise is required. Only the clearest of justifications will warrant dismissal." -819 As this passage makes clear, the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case. Colorado itself illustrates this principle in operation. By far the most important factor in our decision to approve the dismissal there was the "clear federal policy [of] avoidance of piecemeal adjudication of water rights in a river system," as evinced in the McCarran Amendment. We recognized that the Amendment represents Congress' judgment that the field of water rights is one peculiarly appropriate for comprehensive treatment in the forums having the greatest experience and expertise, assisted by state administrative officers acting under the state courts. -820. In addition, we noted that other factors in the case tended to support dismissal — the absence of any substantial progress in the federal-court litigation; the presence in the suit of extensive rights governed by state law; the geographical inconvenience of the federal forum; and the Government's previous willingness to litigate similar suits in state court. B Before discussing the application of Colorado 's exceptional-circumstances test, we must address the Hospital's argument that that test was undermined by our subsequent decision in We find no merit in this argument for at least two reasons. *17 The Hospital relies on the opinion of JUSTICE REHNQUIST, announcing the judgment of the Court. The Hospital argues that JUSTICE REHNQUIST's opinion, if not expressly overruling Colorado at least modifies its holding substantially. But it is clear that a majority of the Court reaffirmed the Colorado test in Calvert. JUSTICE REHNQUIST'S opinion commanded only four votes. It was opposed by the dissenting opinion, in which four Justices concluded that the Calvert District Court's stay was impermissible under Colorado -669, 672-674 JUSTICE BLACKMUN, although concurring in the judgment, agreed with the dissent that Colorado 's exceptional-circumstances test was controlling; he voted to remand to permit the District Court to apply the Colorado factors in the first instance.[19] -668. On remand, the Court of Appeals correctly recognized that the four dissenting Justices and JUSTICE BLACKMUN formed a majority to require application of the Colorado test. Calvert Fire Insurance[20] *18 Even on the basis of JUSTICE REHNQUIST's opinion, however, there is an obvious distinction between Calvert and this case. The key to Calvert was the standard for issuance of a writ of mandamus under 28 U.S. C. 1651.[21] As JUSTICE REHNQUIST stressed, such extraordinary writs are used in aid of appellate jurisdiction only to confine an inferior court to a lawful exercise of its prescribed authority, or to compel it to exercise its authority when it is its duty to do so. The movant must show that his right to the writ is clear and indisputable. -662, 664, 665-666 JUSTICE REHNQUIST concluded that the movant in Calvert had failed to meet this burden. At the same time, he noted that the movant might have succeeded on a proper appeal. In this case we have held that the Court of Appeals did have appellate jurisdiction; it properly exercised that jurisdiction to find that the District Court's stay was impermissible under Colorado The Hospital further contends that Calvert requires reversal here because the opinions of JUSTICE REHNQUIST and *19 JUSTICE BLACKMUN require greater deference to the discretion of the District Court than was given by the Court of Appeals in this case. Under both Calvert and Colorado of course, the decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance. Yet to say that the district court has discretion is not to say that its decision is unreviewable; such discretion must be exercised under the relevant standard prescribed by this Court. In this case, the relevant standard is Colorado 's exceptional-circumstances test, as elucidated by the factors discussed in that case. As we shall now explain, we agree with the Court of Appeals that the District Court in this case abused its discretion in granting the stay. IV Applying the Colorado factors to this case, it is clear that there was no showing of the requisite exceptional circumstances to justify the District Court's stay. The Hospital concedes that the first two factors mentioned in Colorado are not present here. There was no assumption by either court of jurisdiction over any res or property, nor is there any contention that the federal forum was any less convenient to the parties than the state forum. The remaining factors — avoidance of piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums — far from supporting the stay, actually counsel against it. A There is no force here to the consideration that was paramount in Colorado itself — the danger of piecemeal litigation. The Hospital points out that it has two substantive disputes here — one with Mercury, concerning Mercury's claim for delay and impact costs, and the other with the Architect, concerning the Hospital's claim for indemnity for any liability it may have to Mercury. The latter dispute cannot be sent *20 to arbitration without the Architect's consent, since there is no arbitration agreement between the Hospital and the Architect. It is true, therefore, that if Mercury obtains an arbitration order for its dispute, the Hospital will be forced to resolve these related disputes in different forums. That misfortune, however, is not the result of any choice between the federal and state courts; it occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement.[22] Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.[23] If the dispute between Mercury and the Hospital is arbitrable under the Act, then the Hospital's two disputes will be resolved separately — one in arbitration, and the other (if at all) in state-court litigation. Conversely, if the dispute between Mercury and the Hospital is not arbitrable, then both disputes will be resolved in state court. But neither of those two outcomes depends at all on which court decides the question of arbitrability. Hence, a decision to allow that issue to be decided in federal rather than state court does not cause piecemeal resolution of the parties' underlying disputes. Although *21 the Hospital will have to litigate the arbitrability issue in federal rather than state court, that dispute is easily severable from the merits of the underlying disputes. B The order in which the concurrent tribunals obtained and exercised jurisdiction cuts against, not for, the District Court's stay in this case. The Hospital argues that the stay was proper because the state-court suit was filed some 19 days before the federal suit. In the first place, this argument disregards the obvious reason for the Hospital's priority in filing. An indispensable element of Mercury's cause of action under 4 for an arbitration order is the Hospital's refusal to arbitrate. See n. 27, infra. That refusal did not occur until less than a day before the Hospital filed its state suit. Hence, Mercury simply had no reasonable opportunity to file its 4 petition first. Moreover, the Hospital succeeded in obtaining an ex parte injunction from the state court forbidding Mercury to take any steps to secure arbitration.[24] Mercury filed its 4 petition the same day that the injunction was dissolved.[25] That aside, the Hospital's priority argument gives too mechanical a reading to the "priority" element of the Colorado balance. This factor, as with the other Colorado factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. Colorado illustrates *22 this point well. There, the federal suit was actually filed first. Nevertheless, we pointed out as a factor favoring dismissal "the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss." 424 U.S., Here, the opposite was true. It was the state-court suit in which no substantial proceedings (excepting only the abortive temporary injunction) had taken place at the time of the decision to stay. In the federal suit, by contrast, the parties had taken most of the steps necessary to a resolution of the arbitrability issue.[26] In realistic terms, the federal suit was running well ahead of the state suit at the very time that the District Court decided to refuse to adjudicate the case. This refusal to proceed was plainly erroneous in view of Congress' clear intent, in the Arbitration Act, to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible. The Act provides two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S. C. 3, and an affirmative order to engage in arbitration, 4. Both of these sections call for an expeditious and summary hearing, with only restricted inquiry into factual issues.[27] Assuming that the state court would *23 have granted prompt relief to Mercury under the Act,[28] there still would have been an inevitable delay as a result of the District Court's stay. The stay thus frustrated the statutory policy of rapid and unobstructed enforcement of arbitration agreements. C Besides the four factors expressly discussed in Colorado there is another that emerges from Calvert — the fact that federal law provides the rule of decision on the merits. The state-versus-federal-law factor was of ambiguous relevance in Colorado[] In Calvert, however, both the four-vote dissenting opinion and JUSTICE BLACKMUN's opinion concurring in the judgment pointed out that the case involved issues of federal law. ; See also Colorado n. 21. It is equally apparent that this case involves federal issues. The basic issue presented in Mercury's federal suit was the arbitrability of the dispute between Mercury and the Hospital. Federal law in the terms of the Arbitration Act governs that issue in either state or federal court. Section 2 is the primary substantive provision of the Act, declaring that a written agreement to arbitrate "in any maritime transaction or a contract evidencing a transaction involving commerce. shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2.[30] Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. In Prima Paint for example, the parties had signed a contract containing an arbitration clause, but one party alleged that there had been fraud in the inducement of the entire contract (although the alleged fraud did not go to the arbitration clause in particular). The issue before us was whether the issue of fraud in the inducement was itself an arbitrable controversy. We held that the language and policies of the Act required the conclusion that the fraud issue was arbitrable. Although our holding in Prima Paint extended only to the specific issue presented, the Courts of Appeals have since consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues *25 should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.[31] To be sure, the source-of-law factor has less significance here than in Calvert, since the federal courts' jurisdiction to enforce the Arbitration Act is concurrent with that of the state courts.[32] But we emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist "exceptional" circumstances, the "clearest of justifications," that can suffice under Colorado *26 to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender, see n. the presence of federal-law issues must always be a major consideration weighing against surrender.[33] D Finally, in this case an important reason against allowing a stay is the probable inadequacy of the state-court proceeding to protect Mercury's rights. We are not to be understood to impeach the competence or procedures of the North Carolina courts. Moreover, state courts, as much as federal courts, are obliged to grant stays of litigation under 3 of the Arbitration Act.[34] It is less clear, however, whether the same is true of an order to compel arbitration under 4 of the Act.[35] We need not resolve that question here; it suffices to say that there was, at a minimum, substantial room for doubt that Mercury could obtain from the state court an order compelling *27 the Hospital to arbitrate.[36] In many cases, no doubt, a 3 stay is quite adequate to protect the right to arbitration. But in a case such as this, where the party opposing arbitration is the one from whom payment or performance is sought, a stay of litigation alone is not enough. It leaves the recalcitrant party free to sit and do nothing — neither to litigate nor to arbitrate. If the state court stayed litigation pending arbitration but declined to compel the Hospital to arbitrate, Mercury would have no sure way to proceed with its claims except to return to federal court to obtain a 4 order — a pointless and wasteful burden on the supposedly summary and speedy procedures prescribed by the Arbitration Act. E The Hospital argues that the Colorado test is somehow inapplicable because in this case the District Court merely stayed the federal litigation rather than dismissing the suit outright, as in Colorado It contends that Mercury remains free to seek to reopen the federal suit on a showing that the state suit has failed to adjudicate its rights, and that a stay is less onerous than a dismissal. We have already rejected this distinction, for purposes of this case, in discussing appellate jurisdiction. We reject it in this context for the same reasons. *28 We have no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado counsels in favor of deferring to a parallel state-court suit.[37] We can say, however, that a stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. See Part Thus, the decision to invoke Colorado necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. See 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4247, pp. 517-519 Moreover, assuming that for some unexpected reason the state forum does turn out to be inadequate in some respect, the Hospital's argument fails to make out any genuine difference between a stay and a dismissal. It is true that Mercury could seek to return to federal court if it proved necessary; but that would be equally true if the District Court had dismissed the case. It is highly questionable whether this Court would have approved a dismissal of a federal suit in Colorado (or in any of the abstention cases, see ) if the federal courts did not remain open to a dismissed plaintiff who later demonstrated the inadequacy of the state forum. * V In addition to reversing the District Court's stay, the Court of Appeals decided that the underlying contractual dispute between Mercury and the Hospital is arbitrable under the Arbitration Act and the terms of the parties' arbitration agreement. It reversed the District Court's judgment and remanded the case "with directions to proceed in conformity herewith." In effect, the Court of Appeals directed the District Court to enter a 4 order to arbitrate. In this Court, the Hospital does not contest the substantive correctness of the Court of Appeals' holding on arbitrability. It does raise several objections to the procedures the Court of Appeals used in considering and deciding this case. In particular, it points out that the only issue formally appealed to the Court of Appeals was the propriety of the District Court's stay order. Ordinarily, we would not expect the Court of Appeals to pass on issues not decided in the District Court. In the present case, however, we are not disposed to disturb the court's discretion in its handling of the case in view of the special interests at stake and the apparent lack of any prejudice to the parties. Title 28 U.S. C. 2106 gives a court of appeals some latitude in entering an order to achieve justice in the circumstances. The Arbitration Act calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses. The Court of Appeals had in the record full briefs and evidentiary submissions from both parties on the merits of arbitrability, and held that there were no disputed issues of fact requiring a jury trial before a 4 order could issue. Under these circumstances, the court acted within its authority in deciding the legal issues presented in order to facilitate the prompt arbitration that Congress envisaged. Affirmed.

Justice Souter

majority

Doe v. Chao

https://www.courtlistener.com/opinion/131163/doe-v-chao/

https://www.courtlistener.com/api/rest/v3/clusters/131163/

2003-032

The United States is subject to a cause of action for the benefit of at least some individuals adversely affected by a federal agency's violation of the Privacy Act of 1974. The question before us is whether plaintiffs must prove some actual damages to qualify for a minimum statutory award of $1,000. We hold that they must. I Petitioner Buck Doe filed for benefits under the Black Lung Benefits Act, 83 Stat. 792, 30 U.S. C. § 901 et seq., with the Office of Workers' Compensation Programs, the division *617 of the Department of Labor responsible for adjudicating it. The application form called for a Social Security number, which the agency then used to identify the applicant's claim, as on documents like "multicaptioned" notices of hearing dates, sent to groups of claimants, their employers, and the lawyers involved in their cases. The Government concedes that following this practice led to disclosing Doe's Social Security number beyond the limits set by the Privacy Act. See 5 U.S. C. § 552a(b). Doe joined with six other black lung claimants to sue the Department of Labor, alleging repeated violations of the Act and seeking certification of a class of "`all claimants for Black Lung Benefits since the passage of the Privacy Act.'" Pet. for Cert. 6a. Early on, the United States stipulated to an order prohibiting future publication of applicants' Social Security numbers on multicaptioned hearing notices, and the parties then filed cross-motions for summary judgment. The District Court denied class certification and entered judgment against all individual plaintiffs except Doe, finding that their submissions had raised no issues of cognizable harm. As to Doe, the court accepted his uncontroverted evidence of distress on learning of the improper disclosure, granted summary judgment, and awarded $1,000 in statutory damages under 5 U.S. C. § 552a(g)(4). A divided panel of the Fourth Circuit affirmed in part but reversed on Doe's claim, holding the United States entitled to summary judgment across the board. 306 F.3d 170 (2002). The Circuit treated the $1,000 statutory minimum as available only to plaintiffs who suffered actual damages because of the agency's violation, id., at 176-179, and then found that Doe had not raised a triable issue of fact about actual damages, having submitted no corroboration for his claim of emotional distress, such as evidence of physical symptoms, medical treatment, loss of income, or impact on his behavior. In fact, the only indication of emotional affliction was Doe's conclusory allegations that he was "`torn . . . *618 all to pieces'" and "`greatly concerned and worried'" because of the disclosure of his Social Security number and its potentially "`devastating'" consequences. Id., at 181. Doe petitioned for review of the holding that some actual damages must be proven before a plaintiff may receive the minimum statutory award. See Pet. for Cert. i. Because the Fourth Circuit's decision requiring proof of actual damages conflicted with the views of other Circuits, see, e.g., Orekoya v. Mooney, 330 F.3d 1, 7-8 (CA1 2003); Wilborn v. Department of Health and Human Servs., 49 F.3d 597, 603 (CA9 1995); Waters v. Thornburgh, 888 F.2d 870, 872 (CADC 1989); Johnson v. Department of Treasury, IRS, 700 F.2d 971, 977, and n. 12 (CA5 1983); Fitzpatrick v. IRS, 665 F.2d 327, 330-331 (CA11 1982), we granted certiorari. 539 U.S. 957 (2003). We now affirm. II "[I]n order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary . . . to regulate the collection, maintenance, use, and dissemination of information by such agencies." Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896. The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements. Subsection (g)(1) recognizes a civil action for agency misconduct fitting within any of four categories (the fourth, in issue here, being a catchall), 5 U.S. C. §§ 552a(g)(1)(A)-(D), and then makes separate provision for the redress of each. The first two categories cover deficient management of records: subsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper material in a record, and subsection (g)(1)(B) provides a right of access against any agency refusing to allow an individual to inspect a record kept on him. In each instance, further provisions specify *619 such things as the de novo nature of the suit (as distinct from any form of deferential review), §§ 552a(g)(2)(A), (g)(3)(A), and mechanisms for exercising judicial equity jurisdiction (by in camera inspection, for example), § 552a(g)(3)(A). The two remaining categories deal with derelictions having consequences beyond the statutory violations per se. Subsection (g)(1)(C) describes an agency's failure to maintain an adequate record on an individual, when the result is a determination "adverse" to that person. Subsection (g)(1)(D) speaks of a violation when someone suffers an "adverse effect" from any other failure to hew to the terms of the Act. Like the inspection and correction infractions, breaches of the statute with adverse consequences are addressed by specific terms governing relief: "In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of — "(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and "(B) the costs of the action together with reasonable attorney fees as determined by the court." § 552a(g)(4).[1] *620 III Doe argues that subsection (g)(4)(A) entitles any plaintiff adversely affected by an intentional or willful violation to the $1,000 minimum on proof of nothing more than a statutory violation: anyone suffering an adverse consequence of intentional or willful disclosure is entitled to recovery. The Government claims the minimum guarantee goes only to victims who prove some actual damages. We think the Government has the better side of the argument. To begin with, the Government's position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for "actual damages sustained." It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a "person entitled to recovery," the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act's sole provision for recovering anything (as distinct from equitable relief). With such an obvious referent for "person entitled to recovery" in the plaintiff who sustains "actual damages," Doe's theory is immediately questionable in ignoring the "actual damages" language so directly at hand and instead looking for "a person entitled to recovery" in a separate part of the statute devoid of any mention either of recovery or of what might be recovered. Nor is it too strong to say that Doe does ignore statutory language. When Doe reads the statute to mean that the United States shall be liable to any adversely affected subject of an intentional or willful violation, without more, he treats willful action as the last fact necessary to make the Government "liable," and he is thus able to describe anyone *621 to whom it is liable as entitled to the $1,000 guarantee. But this way of reading the statute simply pays no attention to the fact that the statute does not speak of liability (and consequent entitlement to recovery) in a freestanding, unqualified way, but in a limited way, by reference to enumerated damages.[2] Doe's manner of reading "entitle[ment] to recovery" as satisfied by adverse effect caused by intentional or willful violation is in tension with more than the text, however. It is at odds with the traditional understanding that tort recovery requires not only wrongful act plus causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed. See, e. g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 30 (5th ed. 1984). Doe, instead, identifies a person as entitled to recover without any reference to proof of damages, actual or otherwise. Doe might respond that it makes sense to speak of a privacy tort victim as entitled to recover without reference to damages because analogous common law would not require him to show particular items of injury in order to receive a dollar recovery. Traditionally, the common law has provided such victims with a claim for "general" damages, which for privacy and defamation torts are presumed damages: a monetary award calculated without reference to specific harm.[3] *622 Such a rejoinder would not pass muster under the Privacy Act, however, because a provision of the Act not previously mentioned indicates beyond serious doubt that general damages are not authorized for a statutory violation. An uncodified section of the Act established a Privacy Protection Study Commission, which was charged, among its other jobs, to consider "whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(1)(C) or (D) of title 5."[4] § 5(c)(2)(B)(iii), 88 Stat. 1907. Congress left the question of general damages, that is, for another day. Because presumed damages are therefore clearly unavailable, we have no business treating just any adversely affected victim of an intentional or willful violation as entitled to recovery, without something more. This inference from the terms of the Commission's mandate is underscored by drafting history showing that Congress cut out the very language in the bill that would have authorized any presumed damages.[5] The Senate bill would have authorized an award of "actual and general damages *623 sustained by any person," with that language followed by the guarantee that "in no case shall a person entitled to recovery receive less than the sum of $1,000." S. 3418, 93d Cong., 2d Sess., § 303(c)(1) (1974). Although the provision for general damages would have covered presumed damages, see n. 3, supra, this language was trimmed from the final statute, subject to any later revision that might be recommended by the Commission. The deletion of "general damages" from the bill is fairly seen, then, as a deliberate elimination of any possibility of imputing harm and awarding presumed damages.[6] The deletion thus precludes any hope of a sound interpretation of entitlement to recovery without reference to actual damages.[7] Finally, Doe's reading is open to the objection that no purpose is served by conditioning the guarantee on a person's being entitled to recovery. As Doe treats the text, Congress could have accomplished its object simply by providing that the Government would be liable to the individual for actual damages "but in no case . . . less than the sum of $1,000" plus fees and costs. Doe's reading leaves the reference to entitlement to recovery with no job to do, and it accordingly accomplishes nothing.[8] *624 IV There are three loose ends. Doe's argument suggests it would have been illogical for Congress to create a cause of action for anyone who suffers an adverse effect from intentional or willful agency action, then deny recovery without actual damages. But this objection assumes that the language in subsection (g)(1)(D) recognizing a federal "civil action" on the part of someone adversely affected was meant, without more, to provide a complete cause of action, and of course this is not so. A subsequent provision requires proof of intent or willfulness in addition to adverse effect, and if the specific state of mind must be proven additionally, it is equally consistent with logic to require some actual damages as well. Nor does our view deprive the language recognizing a civil action by an adversely affected person of any independent effect, for it may readily be understood as having a limited but specific function: the reference in § 552a(g)(1)(D) to "adverse effect" acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue. See Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126 (1995) ("The phrase `person adversely affected or aggrieved' is a term of art used in many statutes to designate those who have standing to challenge or appeal an agency decision, within the agency or before the courts"); see also 5 U.S. C. § 702 (providing review of agency action under the Administrative Procedure Act to individuals who have been "adversely affected or aggrieved"). That is, an individual subjected to an adverse effect *625 has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act.[9] Next, Doe also suggests there is something peculiar in offering some guaranteed damages, as a form of presumed damages not requiring proof of amount, only to those plaintiffs who can demonstrate actual damages. But this approach parallels another remedial scheme that the drafters of the Privacy Act would probably have known about. At common law, certain defamation torts were redressed by general damages but only when a plaintiff first proved some "special harm," i. e., "harm of a material and generally of a pecuniary nature." 3 Restatement of Torts § 575, Comments a and b (1938) (discussing defamation torts that are "not actionable per se"); see also 3 Restatement (Second) of Torts § 575, Comments a and b (1976) (same). Plaintiffs claiming such torts could recover presumed damages only if they could demonstrate some actual, quantifiable pecuniary loss. Because the recovery of presumed damages in these cases was supplemental to compensation for specific harm, it was hardly unprecedented for Congress to make a guaranteed minimum contingent upon some showing of actual damages, thereby avoiding giveaways to plaintiffs with nothing *626 more than "abstract injuries," Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983).[10] In a final effort to save his claim, Doe points to a pair of statutes with remedial provisions that are worded similarly to § 552a(g)(4). See Tax Reform Act of 1976, § 1201(i)(2)(A), 90 Stat. 1665-1666, 26 U.S. C. § 6110(j)(2)(A); § 1202(e)(1), 90 Stat. 1687, 26 U.S. C. § 7217(c) (1976 ed., Supp. V) (repealed 1982); Electronic Communications Privacy Act of 1986, § 201, 100 Stat. 1866, 18 U.S. C. § 2707(c). He contends that legislative history of these subsequent enactments shows that Congress sometimes used language similar to 5 U.S. C. § 552a(g)(4) with the object of authorizing true liquidated damages remedies. See, e. g., S. Rep. No. 94-938, p. 348 (1976) (discussing § 1202(e)(1) of the Tax Reform Act); S. Rep. No. 99-541, p. 43 (1986) (discussing § 201 of the Electronic Communications Privacy Act). There are two problems with this argument. First, as to § 1201(i)(2)(A) of the Tax Reform Act, the text is too far different from the language of the Privacy Act to serve as any sound basis for analogy; it does not include the critical limiting phrase "entitled to recovery." But even as to § 1202(e)(1) of the Tax Reform Act and § 201 of the Electronic Communications Privacy Act, the trouble with Doe's position is its reliance on the legislative histories of completely separate statutes passed well after the Privacy Act. Those of us who look to legislative history have been wary about expecting to find reliable interpretive help outside the record of the statute being construed, and we have said repeatedly that "`subsequent legislative *627 history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment,'" Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 170, n. 5 (2001) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118, n. 13 (1980)).[11] V The "entitle[ment] to recovery" necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect. The statute guarantees $1,000 only to plaintiffs who have suffered some actual damages.[12] The judgment of the Fourth Circuit is affirmed. It is so ordered.

The United States is subject to a cause of action for the benefit of at least some individuals adversely affected by a federal agency's violation of the Privacy Act of 1974. The question before us is whether plaintiffs must prove some actual damages to qualify for a minimum statutory award of $1,000. We hold that they must. I Petitioner Buck Doe filed for benefits under the Black Lung Benefits Act, 0 U.S. C. 901 et seq., with the Office of Workers' Compensation Programs, the division *617 of the Department of Labor responsible for adjudicating it. The application form called for a Social Security number, which the agency then used to identify the applicant's claim, as on documents like "multicaptioned" notices of hearing dates, sent to groups of claimants, their employers, and the lawyers involved in their cases. The Government concedes that following this practice led to disclosing Doe's Social Security number beyond the limits set by the Privacy Act. See 5 U.S. C. 552a(b). Doe joined with six other black lung claimants to sue the Department of Labor, alleging repeated violations of the Act and seeking certification of a class of "`all claimants for Black Lung Benefits since the passage of the Privacy Act.'" Pet. for Cert. 6a. Early on, the United States stipulated to an order prohibiting future publication of applicants' Social Security numbers on multicaptioned hearing notices, and the parties then filed cross-motions for summary judgment. The District Court denied class certification and entered judgment against all individual plaintiffs except Doe, finding that their submissions had raised no issues of cognizable harm. As to Doe, the court accepted his uncontroverted evidence of distress on learning of the improper disclosure, granted summary judgment, and awarded $1,000 in statutory damages under 5 U.S. C. 552a(g)(4). A divided panel of the Fourth Circuit affirmed in part but reversed on Doe's claim, holding the United States entitled to summary judgment across the board. The Circuit treated the $1,000 statutory minimum as available only to plaintiffs who suffered actual damages because of the agency's violation, and then found that Doe had not raised a triable issue of fact about actual damages, having submitted no corroboration for his claim of emotional distress, such as evidence of physical symptoms, medical treatment, loss of income, or impact on his behavior. In fact, the only indication of emotional affliction was Doe's conclusory allegations that he was "`torn *618 all to pieces'" and "`greatly concerned and worried'" because of the disclosure of his Social Security number and its potentially "`devastating'" consequences. Doe petitioned for review of the holding that some actual damages must be proven before a plaintiff may receive the minimum statutory award. See Pet. for Cert. i. Because the Fourth Circuit's decision requiring proof of actual damages conflicted with the views of other Circuits, see, e.g., ; ; ; ; we granted certiorari. We now affirm. II "[I]n order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary to regulate the collection, maintenance, use, and dissemination of information by such agencies." Privacy Act of 1974, 2(a)(5), The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements. Subsection (g)(1) recognizes a civil action for agency misconduct fitting within any of four categories (the fourth, in issue here, being a catchall), 5 U.S. C. 552a(g)(1)(A)-(D), and then makes separate provision for the redress of each. The first two categories cover deficient management of records: subsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper material in a record, and subsection (g)(1)(B) provides a right of access against any agency refusing to allow an individual to inspect a record kept on him. In each instance, further provisions specify *619 such things as the de novo nature of the suit (as distinct from any form of deferential review), 552a(g)(2)(A), (g)()(A), and mechanisms for exercising judicial equity jurisdiction (by in camera inspection, for example), 552a(g)()(A). The two remaining categories deal with derelictions having consequences beyond the statutory violations per se. Subsection (g)(1)(C) describes an agency's failure to maintain an adequate record on an individual, when the result is a determination "adverse" to that person. Subsection (g)(1)(D) speaks of a violation when someone suffers an "adverse effect" from any other failure to hew to the terms of the Act. Like the inspection and correction infractions, breaches of the statute with adverse consequences are addressed by specific terms governing relief: "In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of — "(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and "(B) the costs of the action together with reasonable attorney fees as determined by the court." 552a(g)(4).[1] *620 III Doe argues that subsection (g)(4)(A) entitles any plaintiff adversely affected by an intentional or willful violation to the $1,000 minimum on proof of nothing more than a statutory violation: anyone suffering an adverse consequence of intentional or willful disclosure is entitled to recovery. The Government claims the minimum guarantee goes only to victims who prove some actual damages. We think the Government has the better side of the argument. To begin with, the Government's position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for "actual damages sustained." It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a "person entitled to recovery," the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act's sole provision for recovering anything (as distinct from equitable relief). With such an obvious referent for "person entitled to recovery" in the plaintiff who sustains "actual damages," Doe's theory is immediately questionable in ignoring the "actual damages" language so directly at hand and instead looking for "a person entitled to recovery" in a separate part of the statute devoid of any mention either of recovery or of what might be recovered. Nor is it too strong to say that Doe does ignore statutory language. When Doe reads the statute to mean that the United States shall be liable to any adversely affected subject of an intentional or willful violation, without more, he treats willful action as the last fact necessary to make the Government "liable," and he is thus able to describe anyone *621 to whom it is liable as entitled to the $1,000 guarantee. But this way of reading the statute simply pays no attention to the fact that the statute does not speak of liability (and consequent entitlement to recovery) in a freestanding, unqualified way, but in a limited way, by reference to enumerated damages.[2] Doe's manner of reading "entitle[ment] to recovery" as satisfied by adverse effect caused by intentional or willful violation is in tension with more than the text, however. It is at odds with the traditional understanding that tort recovery requires not only wrongful act plus causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed. See, e. g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 0 (5th ed. 1984). Doe, instead, identifies a person as entitled to recover without any reference to proof of damages, actual or otherwise. Doe might respond that it makes sense to speak of a privacy tort victim as entitled to recover without reference to damages because analogous common law would not require him to show particular items of injury in order to receive a dollar recovery. Traditionally, the common law has provided such victims with a claim for "general" damages, which for privacy and defamation torts are presumed damages: a monetary award calculated without reference to specific harm.[] *622 Such a rejoinder would not pass muster under the Privacy Act, however, because a provision of the Act not previously mentioned indicates beyond serious doubt that general damages are not authorized for a statutory violation. An uncodified section of the Act established a Privacy Protection Study Commission, which was charged, among its other jobs, to consider "whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(1)(C) or (D) of title 5."[4] 5(c)(2)(B)(iii), Congress left the question of general damages, that is, for another day. Because presumed damages are therefore clearly unavailable, we have no business treating just any adversely affected victim of an intentional or willful violation as entitled to recovery, without something more. This inference from the terms of the Commission's mandate is underscored by drafting history showing that Congress cut out the very language in the bill that would have authorized any presumed damages.[5] The Senate bill would have authorized an award of "actual and general damages *62 sustained by any person," with that language followed by the guarantee that "in no case shall a person entitled to recovery receive less than the sum of $1,000." S. 418, 9d Cong., 2d Sess., 0(c)(1) (1974). Although the provision for general damages would have covered presumed damages, see n. this language was trimmed from the final statute, subject to any later revision that might be recommended by the Commission. The deletion of "general damages" from the bill is fairly seen, then, as a deliberate elimination of any possibility of imputing harm and awarding presumed damages.[6] The deletion thus precludes any hope of a sound interpretation of entitlement to recovery without reference to actual damages.[7] Finally, Doe's reading is open to the objection that no purpose is served by conditioning the guarantee on a person's being entitled to recovery. As Doe treats the text, Congress could have accomplished its object simply by providing that the Government would be liable to the individual for actual damages "but in no case less than the sum of $1,000" plus fees and costs. Doe's reading leaves the reference to entitlement to recovery with no job to do, and it accordingly accomplishes nothing.[8] *624 IV There are three loose ends. Doe's argument suggests it would have been illogical for Congress to create a cause of action for anyone who suffers an adverse effect from intentional or willful agency action, then deny recovery without actual damages. But this objection assumes that the language in subsection (g)(1)(D) recognizing a federal "civil action" on the part of someone adversely affected was meant, without more, to provide a complete cause of action, and of course this is not so. A subsequent provision requires proof of intent or willfulness in addition to adverse effect, and if the specific state of mind must be proven additionally, it is equally consistent with logic to require some actual damages as well. Nor does our view deprive the language recognizing a civil action by an adversely affected person of any independent effect, for it may readily be understood as having a limited but specific function: the reference in 552a(g)(1)(D) to "adverse effect" acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue. See Director, Office of Workers' Compensation ; see also 5 U.S. C. 702 (providing review of agency action under the Administrative Procedure Act to individuals who have been "adversely affected or aggrieved"). That is, an individual subjected to an adverse effect *625 has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act.[9] Next, Doe also suggests there is something peculiar in offering some guaranteed damages, as a form of presumed damages not requiring proof of amount, only to those plaintiffs who can demonstrate actual damages. But this approach parallels another remedial scheme that the drafters of the Privacy Act would probably have known about. At common law, certain defamation torts were redressed by general damages but only when a plaintiff first proved some "special harm," i. e., "harm of a material and generally of a pecuniary nature." Restatement of Torts 575, Comments a and b (198) (discussing defamation torts that are "not actionable per se"); see also Restatement (Second) of Torts 575, Comments a and b (1976) (same). Plaintiffs claiming such torts could recover presumed damages only if they could demonstrate some actual, quantifiable pecuniary loss. Because the recovery of presumed damages in these cases was supplemental to compensation for specific harm, it was hardly unprecedented for Congress to make a guaranteed minimum contingent upon some showing of actual damages, thereby avoiding giveaways to plaintiffs with nothing *626 more than "abstract injuries," Los[10] In a final effort to save his claim, Doe points to a pair of statutes with remedial provisions that are worded similarly to 552a(g)(4). See Tax Reform Act of 1976, 1201(i)(2)(A), -1666, 26 U.S. C. 6110(j)(2)(A); 1202(e)(1), 26 U.S. C. 7217(c) (1976 ed., Supp. V) ; Electronic Communications Privacy Act of 1986, 201, 18 U.S. C. 2707(c). He contends that legislative history of these subsequent enactments shows that Congress sometimes used language similar to 5 U.S. C. 552a(g)(4) with the object of authorizing true liquidated damages remedies. See, e. g., S. Rep. No. 94-98, p. 48 (1976) (discussing 1202(e)(1) of the Tax Reform Act); S. Rep. No. 99-541, p. 4 (1986) (discussing 201 of the Electronic Communications Privacy Act). There are two problems with this argument. First, as to 1201(i)(2)(A) of the Tax Reform Act, the text is too far different from the language of the Privacy Act to serve as any sound basis for analogy; it does not include the critical limiting phrase "entitled to recovery." But even as to 1202(e)(1) of the Tax Reform Act and 201 of the Electronic Communications Privacy Act, the trouble with Doe's position is its reliance on the legislative histories of completely separate statutes passed well after the Privacy Act. Those of us who look to legislative history have been wary about expecting to find reliable interpretive help outside the record of the statute being construed, and we have said repeatedly that "`subsequent legislative *627 history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment,'" Solid Waste Agency of Northern Cook 51 U.S. 159, ).[11] V The "entitle[ment] to recovery" necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect. The statute guarantees $1,000 only to plaintiffs who have suffered some actual damages.[12] The judgment of the Fourth Circuit is affirmed. It is so ordered.

Justice Stevens

dissenting

Gross v. FBL Financial Services, Inc.

https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145857/

2008-074

The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et *2353 seq., makes it unlawful for an employer to discriminate against any employee "because of" that individual's age, § 623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The "but-for" causation standard endorsed by the Court today was advanced in Justice KENNEDY's dissenting opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 279, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. I The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.[1] Instead, the question arose for the first time in respondent's brief, which asked us to "overrule Price Waterhouse with respect to its application to the ADEA." Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: "`We would normally expect notice of an intent to make so far-reaching an argument in the respondent's opposition to a petition for certiorari, cf. this Court's Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.'" Alabama v. Shelton, 535 U.S. 654, 660, n. 3, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002) (quoting South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171, 119 S. Ct. 1180, 143 L. Ed. 2d 258 (1999)). Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.[2] Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress' intent. The ADEA provides that "[i]t shall be unlawful for an employer... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (emphasis added). As we recognized in Price Waterhouse when we construed the identical "because of" language of Title VII, see 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an employer "to fail or refuse to hire or to discharge any individual ... with respect to his compensation, terms, *2354 conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" (emphasis added)), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee. In Price Waterhouse, we concluded that the words "`because of' such individual's... sex ... mean that gender must be irrelevant to employment decisions." 490 U.S., at 240, 109 S. Ct. 1775 (plurality opinion); see also id., at 260, 109 S. Ct. 1775 (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.[3] We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff's sex into account. Id., at 244-245, 109 S. Ct. 1775 (plurality opinion). But this affirmative defense did not alter the meaning of "because of." As we made clear, when "an employer considers both gender and legitimate factors at the time of making a decision, that decision was `because of' sex." Id., at 241, 109 S. Ct. 1775; see also id., at 260, 109 S. Ct. 1775 (White, J., concurring in judgment). We readily rejected the dissent's contrary assertion. "To construe the words `because of' as colloquial shorthand for `but-for' causation," we said, "is to misunderstand them." Id., at 240, 109 S. Ct. 1775 (plurality opinion).[4] Today, however, the Court interprets the words "because of" in the ADEA "as colloquial shorthand for `but-for' causation." Ibid. That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII's language apply "with equal force in the context of age discrimination, for the substantive provisions of the ADEA `were derived in haec verba from Title VII.'" Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 584, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973) (per curiam). For this reason, Justice KENNEDY's dissent in Price Waterhouse assumed the plurality's mixed-motives framework extended to the ADEA, see 490 U.S., at 292, 109 S. Ct. 1775, and the Courts of Appeals to have *2355 considered the issue unanimously have applied Price Waterhouseto ADEA claims.[5] The Court nonetheless suggests that applying Price Waterhouse would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), that "[a disparate-treatment] claim `cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Ante, at 2350. The italicized phrase is at best inconclusive as to the meaning of the ADEA's "because of" language, however, as other passages in Hazen Paper Co. demonstrate. We also stated, for instance, that the ADEA "requires the employer to ignore an employee's age," id., at 612, 113 S. Ct. 1701 (emphasis added), and noted that "[w]hen the employer's decision is wholly motivated by factors other than age," there is no violation, id., at 611 (emphasis altered). So too, we indicated the "possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status," id., at 613, 113 S. Ct. 1701 — a classic mixed-motives scenario. Moreover, both Hazen Paper Co. and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). See, e.g., Reeves, 530 U.S., at 141-143, 120 S. Ct. 2097; Hazen Paper Co., 507 U.S., at 610, 113 S. Ct. 1701. This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II The conclusion that "because of" an individual's age means that age was a motivating factor in an employment decision is bolstered by Congress' reaction to Price Waterhouse in the 1991 Civil Rights Act. As part of its response to "a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws," H.R.Rep. No. 102-40, pt. 2, p. 2 (1991), U.S.Code Cong. & Admin.News 1991, p. 694 (hereinafter H.R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that an employer's same-decision showing would limit only a plaintiff's remedies. See § 2000e-5(g)(2)(B). Importantly, however, Congress ratified Price Waterhouse's interpretation of the plaintiff's burden of proof, rejecting the dissent's suggestion in that case that but-for causation was the proper standard. See *2356 § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.[6] But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price Waterhouse's construction of "because of" remains the governing law for ADEA claims. Our recent decision in Smith v. City of Jackson, 544 U.S. 228, 240, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005), is precisely on point, as we considered in that case the effect of Congress' failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that "the relevant 1991 amendments expanded the coverage of Title VII[but] did not amend the ADEA or speak to the subject of age discrimination," we held that "Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA." 544 U.S., at 240, 125 S. Ct. 1536 (discussing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989)); see also Meacham v. Knolls Atomic Power Laboratory, 554 U.S. ___, ___, 128 S. Ct. 2395, 2405-2406, 171 L. Ed. 2d 283 (2008). If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress' partial ratification of Price Waterhouse to argue against that case's precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price Waterhouse likewise must not apply because Congress effectively codified Price Waterhouse's holding in the amendments. Ante, at 2348-2349. This does not follow. To the contrary, the fact that Congress endorsed this Court's interpretation of the "because of" language in Price Waterhouse (even as it rejected the employer's affirmative defense to liability) provides all the more reason to adhere to that decision's motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g., H.R. Rep., pt. 2, at 17 ("When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions"); id., at 2 (stating that the Act "reaffirm[ed] that any reliance on prejudice in making employment decisions is illegal"); see also H.R. Rep., pt. 1, at 45; S.Rep. No. 101-315, pp. 6, 22 (1990). The 1991 amendments to Title VII also provide the answer to the majority's argument that the mixed-motives approach has proved unworkable. Ante, at 2351-2352. Because Congress has codified a mixed-motives *2357 framework for Title VII cases — the vast majority of antidiscrimination lawsuits — the Court's concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today's decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims. The Court's resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress' response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up — whether a mixed-motives jury instruction is ever proper in an ADEA case — is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). I would accordingly hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. The source of the direct-evidence debate is Justice O'Connor's opinion concurring in the judgment in Price Waterhouse. Writing only for herself, Justice O'Connor argued that a plaintiff should be required to introduce "direct evidence" that her sex motivated the decision before the plurality's mixed-motives framework would apply. 490 U.S., at 276, 109 S. Ct. 1775.[7] Many courts have treated Justice O'Connor's opinion in Price Waterhouse as controlling for both Title VII and ADEA mixed-motives cases in light of our statement in Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977), that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see supra, at 2354, n. 3; he disagreed only as to the type of evidence an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective evidence, he wrote separately to express his view that an employer's credible testimony could suffice. 490 U.S., at 261, 109 S. Ct. 1775. Because Justice White provided a fifth vote for the "rationale explaining the result" of the Price Waterhouse decision, Marks, 430 U.S., at 193, 97 S. Ct. 990, his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct evidence. Any questions raised by Price Waterhouse as to a direct evidence requirement were settled by this Court's unanimous decision in Desert Palace, in which we held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing *2358 the language of § 2000e-2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct evidence and that "Congress has been unequivocal when imposing heightened proof requirements." 539 U.S., at 99, 123 S. Ct. 2148. The statute's silence with respect to direct evidence, we held, meant that "we should not depart from the `[c]onventional rul[e] of civil litigation... [that] requires a plaintiff to prove his case by a preponderance of the evidence', ... using `direct or circumstantial evidence.'" Ibid. (quoting Price Waterhouse, 490 U.S., at 253, 109 S. Ct. 1775 (plurality opinion), and Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983)). We also recognized the Court's consistent acknowledgment of the utility of circumstantial evidence in discrimination cases. Our analysis in Desert Palace applies with equal force to the ADEA. Cf. ante, at 2351-2352, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct evidence requirement, and we have specifically recognized the utility of circumstantial evidence in ADEA cases. See Reeves, 530 U.S., at 147, 120 S. Ct. 2097 (cited by Desert Palace, 539 U.S., at 99-100, 123 S. Ct. 2148). Moreover, in Hazen Paper Co., we held that an award of liquidated damages for a "willful" violation of the ADEA did not require proof of the employer's motivation through direct evidence, 507 U.S., at 615, 113 S. Ct. 1701, and we have similarly rejected the imposition of special evidentiary rules in other ADEA cases. See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996). Desert Palace thus confirms the answer provided by the plurality and Justice White in Price Waterhouse: An ADEA plaintiff need not present direct evidence of discrimination to obtain a mixed-motives instruction. IV The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price Waterhouse and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent.

The Age Discrimination in Employment Act of 1967 (ADEA), et *2353 seq., makes it unlawful for an employer to discriminate against any employee "because of" that individual's age, 623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The "but-for" causation standard endorsed by the Court today was advanced in Justice KENNEDY's dissenting opinion in Price a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. e-2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct of age discrimination to obtain a mixed-motives instruction. I The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.[1] Instead, the question arose for the first time in respondent's brief, which asked us to "overrule Price with respect to its application to the ADEA." Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: "`We would normally expect notice of an intent to make so far-reaching an argument in the respondent's opposition to a petition for certiorari, cf. this Court's Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.'" Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.[2] Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress' intent. The ADEA provides that "[i]t shall be unlawful for an employer. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1) As we recognized in Price when we construed the identical "because of" language of Title VII, see 42 U.S.C. e-2(a)(1) (making it unlawful for an employer "to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, *2354 conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" ), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee. In Price we concluded that the words "`because of' such individual's. sex mean that gender must be irrelevant to employment decisions." (plurality opinion); see also (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.[3] We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff's sex into account. (plurality opinion). But this affirmative defense did not alter the meaning of "because of." As we made clear, when "an employer considers both gender and legitimate factors at the time of making a decision, that decision was `because of' sex." ; see also (White, J., concurring in judgment). We readily rejected the dissent's contrary assertion. "To construe the words `because of' as colloquial shorthand for `but-for' causation," we said, "is to misunderstand them." (plurality opinion).[4] Today, however, the Court interprets the words "because of" in the ADEA "as colloquial shorthand for `but-for' causation." That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII's language apply "with equal force in the context of age discrimination, for the substantive provisions of the ADEA `were derived in haec verba from Title VII.'" Trans World Airlines, See generally For this reason, Justice KENNEDY's dissent in Price assumed the plurality's mixed-motives framework extended to the ADEA, see and the Courts of Appeals to have *2355 considered the issue unanimously have applied Price to ADEA claims.[5] The Court nonetheless suggests that applying Price would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper that "[a disparate-treatment] claim `cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Ante, 350. The italicized phrase is at best inconclusive as to the meaning of the ADEA's "because of" language, however, as other passages in Hazen Paper demonstrate. We also stated, for instance, that the ADEA "requires the employer to ignore an employee's age," and noted that "[w]hen the employer's decision is wholly motivated by factors other than age," there is no violation, So too, we indicated the "possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status," — a classic mixed-motives scenario. Moreover, both Hazen Paper and on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas and Texas Dept. of Community See, e.g., -143, ; Hazen Paper 507 U.S., at This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II The conclusion that "because of" an individual's age means that age was a motivating factor in an employment decision is bolstered by Congress' reaction to Price in the 1991 Civil Rights Act. As part of its response to "a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws," H.R.Rep. No. 102-40, pt. 2, p. 2 (1991), U.S.Code Cong. & Admin.News 1991, p. 694 (hereinafter H.R. Rep.), Congress eliminated the affirmative defense to liability that Price had furnished employers and provided instead that an employer's same-decision showing would limit only a plaintiff's remedies. See e-5(g)(2)(B). Importantly, however, Congress ratified Price 's interpretation of the plaintiff's burden of proof, rejecting the dissent's suggestion in that case that but-for causation was the proper standard. See *2356 e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.[6] But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price 's construction of "because of" remains the governing law for ADEA claims. Our recent decision in is precisely on point, as we considered in that case the effect of Congress' failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that "the relevant 1991 amendments expanded the coverage of Title VII[but] did not amend the ADEA or speak to the subject of age discrimination," we held that "Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA." 544 U.S., ); see also 5-6, L. Ed. 2d 283 If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress' partial ratification of Price to argue against that case's precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price likewise must not apply because Congress effectively codified Price 's holding in the amendments. Ante, 348-2349. This does not follow. To the contrary, the fact that Congress endorsed this Court's interpretation of the "because of" language in Price (even as it rejected the employer's affirmative defense to liability) provides all the more reason to adhere to that decision's motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g., H.R. Rep., pt. 2, at 17 ("When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions"); ; see also H.R. Rep., pt. 1, at 45; S.Rep. No. 101-315, pp. 6, 22 (1990). The 1991 amendments to Title VII also provide the answer to the majority's argument that the mixed-motives approach has proved unworkable. Ante, 351-2352. Because Congress has codified a mixed-motives *2357 framework for Title VII cases — the vast majority of antidiscrimination lawsuits — the Court's concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today's decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims. The Court's resurrection of the but-for causation standard is unwarranted. Price repudiated that standard 20 years ago, and Congress' response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up — whether a mixed-motives jury instruction is ever proper in an ADEA case — is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert I would accordingly hold that a plaintiff need not present direct of age discrimination to obtain a mixed-motives instruction. The source of the direct- debate is Justice O'Connor's opinion concurring in the judgment in Price Writing only for herself, Justice O'Connor argued that a plaintiff should be required to introduce "direct " that her sex motivated the decision before the plurality's mixed-motives framework would apply. 490 U.S., 76, that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Unlike the cases addressed, however, Price garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see 354, n. 3; he disagreed only as to the type of an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective he wrote separately to express his view that an employer's credible testimony could suffice. 490 U.S., 61, Because Justice White provided a fifth vote for the "rationale explaining the result" of the Price decision, 430 U.S., at his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct Any questions raised by Price as to a direct requirement were settled by this Court's unanimous decision in Desert in which we held that a plaintiff need not introduce direct to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing *2358 the language of e-2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct and that "Congress has been unequivocal when imposing heightened proof requirements." The statute's silence with respect to direct we held, meant that "we should not depart from the `[c]onventional rul[e] of civil litigation. [that] requires a plaintiff to prove his case by a preponderance of the ', using `direct or circumstantial'" (quoting Price 490 U.S., 53, (plurality opinion), and Postal Service Bd. of ). We also recognized the Court's consistent acknowledgment of the utility of circumstantial in discrimination cases. Our analysis in Desert applies with equal force to the ADEA. Cf. ante, 351-2352, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct requirement, and we have specifically recognized the utility of circumstantial in ADEA cases. See (cited by Desert -100, ). Moreover, in Hazen Paper we held that an award of liquidated damages for a "willful" violation of the ADEA did not require proof of the employer's motivation through direct ; Desert thus confirms the answer provided by the plurality and Justice White in Price : An ADEA plaintiff need not present direct of discrimination to obtain a mixed-motives instruction. IV The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent.

Justice Stevens

majority

Chao v. Mallard Bay Drilling, Inc.

https://www.courtlistener.com/opinion/118472/chao-v-mallard-bay-drilling-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118472/

2001-013

Respondent operates a fleet of barges used for oil and gas exploration. On April 9, 1997, one of those barges, "Rig 52," was towed to a location in the territorial waters of Louisiana, where it drilled a well over two miles deep. On June 16, 1997, when the crew had nearly completed drilling, an explosion occurred, killing four members of the crew and injuring two others. Under United States Coast Guard regulations, the incident qualified as a "marine casualty" because it involved a commercial vessel operating "upon the navigable waters of the United States." 46 CFR § 4.03-1 (2000). Pursuant to its statutory authority, the Coast Guard conducted an investigation of the casualty. See 46 U.S. C. §§ 6101-6104, 6301-6308 (1994 ed. and Supp. V).[1] The resulting report was limited in scope to what the Coast Guard described as "purely vessel issues," and noted that the Coast Guard "does not regulate mineral drilling operations in state waters, and does not have the expertise to adequately analyze all issues relating to the failure of an oil/natural gas well." App. to Pet. for Cert. 24a. The Coast Guard determined that natural gas had leaked from the well, spread throughout the barge, and was likely ignited by sparks in the pump room. The report made factual findings concerning the crew's actions, but did not accuse respondent of violating any Coast Guard regulations. Indeed, the report noted the *238 limits of the Coast Guard's regulation of vessels such as Rig 52: The report explained that, although Rig 52 held a Coast Guard Certificate of Documentation, it had "never been inspected by the Coast Guard and is not required to hold a Certificate of Inspection or be inspected by the Coast Guard." Id., at 27a. In Coast Guard terminology, Rig 52 was an "uninspected vessel," see 46 U.S. C. § 2101(43), as opposed to one of the 14 varieties of "inspected vessels" subject to comprehensive Coast Guard regulation, see 46 U.S. C. § 3301 (1994 ed. and Supp. V). Based largely on information obtained from the Coast Guard concerning this incident, the Occupational Safety and Health Administration (OSHA) cited respondent for three violations of the Occupational Safety and Health Act of 1970 (OSH Act or Act), 84 Stat. 1590, as amended, 29 U.S. C. § 651 et seq. (1994 ed. and Supp. V), and the Act's implementing regulations. The citations alleged that respondent failed promptly to evacuate employees on board the drilling rig; failed to develop and implement an emergency response plan to handle anticipated emergencies; and failed to train employees in emergency response. No. 97-1973, 1998 WL 917067, *1 (OSHRC, Dec. 28, 1998). Respondent did not deny the charges, but challenged OSHA's jurisdiction to issue the citations on two grounds: that Rig 52 was not a "workplace" within the meaning of § 4(a) of the Act;[2] and that § 4(b)(1) of the Act pre-empted OSHA jurisdiction because the Coast Guard had exclusive authority to prescribe *239 and enforce standards concerning occupational safety and health on vessels in navigable waters.[3] The Administrative Law Judge (ALJ) rejected both jurisdictional challenges. Finding that respondent's "employees were not performing navigational-related activities" and that Rig 52 "was stationary and within the territorial boundaries of the State of Louisiana," he concluded that Rig 52 was a "workplace" within the meaning of the Act. Id., at *3. The ALJ then held that the Coast Guard had not pre-empted OSHA's jurisdiction under § 4(b)(1), explaining that respondent had identified no basis for an "industry-wide exemption from OSHA regulations" for uninspected vessels, and had failed to identify any Coast Guard regulation "specifically regulat[ing]" the subject matter of the citations. Id., at *4. In the ALJ's view, another federal agency cannot pre-empt OSHA's jurisdiction under § 4(b)(1) unless that agency exercises its statutory authority to regulate a particular working condition: Mere possession of the power to regulate is not enough.[4] The Occupational Safety and Health Review Commission declined review of the ALJ's decision and issued a final order assessing a penalty against respondent of $4,410 per citation. Id., at *1. *240 Without reaching the question whether Rig 52 was a "workplace" under § 4(a) of the OSH Act, the United States Court of Appeals for the Fifth Circuit reversed. It held that the Coast Guard "has exclusive jurisdiction over the regulation of working conditions of seamen aboard vessels such as [Rig 52], thus precluding OSHA's regulation under Section 4(b)(1) of the OSH Act." 212 F.3d 898, 900 (2000). The Court of Appeals determined that this pre-emption encompassed uninspected vessels such as Rig 52, as well as inspected ones, explaining that the Coast Guard "has in fact exercised" its "authority to issue safety regulations for uninspected vessels"—as § 4(b)(1) requires for pre-emption. Id., at 901 (stating, with respect to uninspected vessels, that the Coast Guard has issued regulations concerning "life preservers and other life saving equipment; emergency alerting and locating equipment; fire extinguishing equipment; backfire flame control; ventilation of tanks and engine spaces; cooking, heating, and lighting systems; safety orientation and emergency instructions; action required after an accident; and signaling lights"). However, the court conceded that "[b]ecause a drilling barge is not self-propelled, some of these regulations, by their nature, do not apply to [Rig 52]." Id., at 901, n. 6. Because other Courts of Appeals have construed the preemptive force of § 4(b)(1) more narrowly than did the Fifth Circuit, akin to the interpretation adopted by the ALJ in this case,[5] we granted certiorari to resolve the conflict. 531 U.S. 1143 (2001). We reverse, as the statute requires us to do. The OSH Act imposes on covered employers a duty to provide working conditions that "are free from recognized hazards that are causing or are likely to cause death or serious *241 bodily harm" to their employees, as well as an obligation to comply with safety standards promulgated by the Secretary of Labor. 29 U.S. C. §§ 654(a)(1), (2).[6] The coverage of the Act does not, however, extend to working conditions that are regulated by other federal agencies. To avoid overlapping regulation, § 4(b)(1) of the Act, as codified in 29 U.S. C. § 653(b)(1), provides: "Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health." (Emphasis added.) Congress' use of the word "exercise" makes clear that, contrary to respondent's position, see, e. g., Tr. of Oral Arg. 39, mere possession by another federal agency of unexercised authority to regulate certain working conditions is insufficient to displace OSHA's jurisdiction. Furthermore, another federal agency's minimal exercise of some authority over certain conditions on vessels such as Rig 52 does not result in complete pre-emption of OSHA jurisdiction, because the statute also makes clear that OSHA is only preempted if the working conditions at issue are the particular ones "with respect to which" another federal agency has regulated, and if such regulations "affec[t] occupational safety or health." § 653(b)(1).[7] To determine whether Coast Guard *242 regulations have pre-empted OSHA's jurisdiction over the working conditions on Rig 52, it is thus necessary to examine the contours of the Coast Guard's exercise of its statutory authority, not merely the existence of such authority. Congress has assigned a broad and important mission to the Coast Guard. Its governing statute provides, in part: "The Coast Guard . . . shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department . . . ." 14 U.S. C. § 2 (2000 ed.). Under this provision, the Coast Guard possesses authority to promulgate and enforce regulations promoting the safety of vessels anchored in state navigable waters, such as Rig 52. As mentioned above, however, in defining the Coast Guard's regulatory authority, Congress has divided the universe of vessels into two broad classes: "inspected vessels" and "uninspected vessels." In 46 U.S. C. § 3301 (1994 ed. and Supp. V), Congress has listed 14 types of vessels that are "subject to inspection" by the Coast Guard pursuant to a substantial body of rules mandated by Congress.[8] In contrast, 46 *243 U. S. C. § 2101(43) defines an "uninspected vessel" as "a vessel not subject to inspection under section 3301 . . . that is not a recreational vessel." The parties do not dispute that OSHA's regulations have been pre-empted with respect to inspected vessels, because the Coast Guard has broad statutory authority to regulate the occupational health and safety of seamen aboard inspected vessels, 46 U.S. C. § 3306 (1994 ed. and Supp. V), and it has exercised that authority. Indeed, the Coast Guard and OSHA signed a "Memorandum of Understanding" (MOU) on March 17, 1983, evidencing their agreement that, as a result of the Coast Guard's exercise of comprehensive authority over inspected vessels, OSHA "may not enforce the OSH Act with respect to the working conditions of seamen aboard inspected vessels." 48 Fed. Reg. 11365. The MOU recognizes that the exercise of the Coast Guard's authority—and hence the displacement of OSHA jurisdiction— extends not only to those working conditions on inspected vessels specifically discussed by Coast Guard regulations, but to all working conditions on inspected vessels, including those "not addressed by the specific regulations." Ibid. Thus, as OSHA recognized in the MOU, another agency may "exercise" its authority within the meaning of § 4(b)(1) of the OSH Act either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels. Uninspected vessels such as Rig 52, however, present an entirely different regulatory situation. Nearly all of the Coast Guard regulations responsible for displacing OSHA's jurisdiction over inspected vessels, as described in the MOU, do not apply to uninspected vessels like Rig 52. See 46 U.S. C. § 2101(43). Rather, in the context of uninspected vessels, the Coast Guard's regulatory authority—and exercise thereof—is more limited. With respect to uninspected vessels, the Coast Guard regulates matters related to marine *244 safety, such as fire extinguishers, life preservers, engine flame arrestors, engine ventilation, and emergency locating equipment. See 46 U.S. C. § 4102 (1994 ed. and Supp. V); 46 CFR pts. 24-26 (2000). Because these general marine safety regulations do not address the occupational safety and health concerns faced by inland drilling operations on uninspected vessels, they do not pre-empt OSHA's authority under § 4(b)(1) in this case. Indeed, as the Court of Appeals acknowledged, many of these general Coast Guard regulations for uninspected vessels do not even apply to stationary barges like Rig 52. See 212 F.3d, at 901, n. 6. In addition to issuing these general marine safety regulations, the Coast Guard has exercised its statutory authority to regulate a number of specific working conditions on certain types of uninspected vessels. For example, the Coast Guard regulates drilling operations that take place on the outer continental shelf. See 43 U.S. C. § 1333(a)(1); 33 CFR pt. 142 (2000). And it is true that some of these more specific regulations would, pursuant to § 4(b)(1), pre-empt OSHA regulations covering those particular working conditions and vessels. But respondent has not identified any specific Coast Guard regulations that address the types of risk and vessel at issue in this case: namely, dangers from oil-drilling operations on uninspected barges in inland waters. Simply because the Coast Guard has engaged in a limited exercise of its authority to address certain working conditions pertaining to certain classes of uninspected vessels does not mean that all OSHA regulation of all uninspected vessels has been pre-empted. See 29 U.S. C. § 653(b)(1) (preemption only extends to working conditions "with respect to which" other federal agencies have exercised their authority (emphasis added)). Because the Coast Guard has neither affirmatively regulated the working conditions at issue in this case, nor asserted comprehensive regulatory jurisdiction *245 over working conditions on uninspected vessels, the Coast Guard has not "exercise[d]" its authority under § 4(b)(1).[9] We think it equally clear that Rig 52 was a "workplace" as that term is defined in § 4(a) of the Act. The vessel was located within the geographic area described in the definition: "a State," 29 U.S. C. § 653(a), namely, Louisiana. Nothing in the text of § 4(a) attaches any significance to the fact that the barge was anchored in navigable waters. Rather, the other geographic areas described in § 4(a) support a reading of that provision that includes a State's navigable waters: for example, § 4(a) covers the Outer Continental Shelf, and sensibly extends to drilling operations attached thereto. Cf. 43 U.S. C. § 1333(a)(1). Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Justice Scalia took no part in the decision of this case.

Respondent operates a fleet of barges used for oil and gas exploration. On April 9, 1997, one of those barges, "Rig 52," was towed to a location in the territorial waters of Louisiana, where it drilled a well over two miles deep. On June 16, 1997, when the crew had nearly completed drilling, an explosion occurred, killing four members of the crew and injuring two others. Under United States Coast Guard regulations, the incident qualified as a "marine casualty" because it involved a commercial vessel operating "upon the navigable waters of the United States." Pursuant to its statutory authority, the Coast Guard conducted an investigation of the casualty. See 46 U.S. C. 6101-6104, 6301-6308 (1994 ed. and Supp. V).[1] The resulting report was limited in scope to what the Coast Guard described as "purely vessel issues," and noted that the Coast Guard "does not regulate mineral drilling operations in state waters, and does not have the expertise to adequately analyze all issues relating to the failure of an oil/natural gas well." App. to Pet. for Cert. 24a. The Coast Guard determined that natural gas had leaked from the well, spread throughout the barge, and was likely ignited by sparks in the pump room. The report made factual findings concerning the crew's actions, but did not accuse respondent of violating any Coast Guard regulations. Indeed, the report noted the *238 limits of the Coast Guard's regulation of vessels such as Rig 52: The report explained that, although Rig 52 held a Coast Guard Certificate of Documentation, it had "never been inspected by the Coast Guard and is not required to hold a Certificate of Inspection or be inspected by the Coast Guard." at 27a. In Coast Guard terminology, Rig 52 was an "uninspected vessel," see 46 U.S. C. 2101(43), as opposed to one of the 14 varieties of "inspected vessels" subject to comprehensive Coast Guard regulation, see 46 U.S. C. 3301 (1994 ed. and Supp. V). Based largely on information obtained from the Coast Guard concerning this incident, the Occupational Safety and Health Administration (OSHA) cited respondent for three violations of the Occupational Safety and Health Act of 1970 (OSH Act or Act), as amended, 29 U.S. C. 651 et seq. (1994 ed. and Supp. V), and the Act's implementing regulations. The citations alleged that respondent failed promptly to evacuate employees on board the drilling rig; failed to develop and implement an emergency response plan to handle anticipated emergencies; and failed to train employees in emergency response. No. 97-1973, Respondent did not deny the charges, but challenged OSHA's jurisdiction to issue the citations on two grounds: that Rig 52 was not a "workplace" within the meaning of 4(a) of the Act;[2] and that 4(b)(1) of the Act pre-empted OSHA jurisdiction because the Coast Guard had exclusive authority to prescribe *239 and enforce standards concerning occupational safety and health on vessels in navigable waters.[3] The Administrative Law Judge (ALJ) rejected both jurisdictional challenges. Finding that respondent's "employees were not performing navigational-related activities" and that Rig 52 "was stationary and within the territorial boundaries of the State of Louisiana," he concluded that Rig 52 was a "workplace" within the meaning of the Act. The ALJ then held that the Coast Guard had not pre-empted OSHA's jurisdiction under 4(b)(1), explaining that respondent had identified no basis for an "industry-wide exemption from OSHA regulations" for uninspected vessels, and had failed to identify any Coast Guard regulation "specifically regulat[ing]" the subject matter of the citations. In the ALJ's view, another federal agency cannot pre-empt OSHA's jurisdiction under 4(b)(1) unless that agency exercises its statutory authority to regulate a particular working condition: Mere possession of the power to regulate is not enough.[4] The Occupational Safety and Health Review Commission declined review of the ALJ's decision and issued a final order assessing a penalty against respondent of $4,410 per citation. at *240 Without reaching the question whether Rig 52 was a "workplace" under 4(a) of the OSH Act, the United States Court of Appeals for the Fifth Circuit reversed. It held that the Coast Guard "has exclusive jurisdiction over the regulation of working conditions of seamen aboard vessels such as [Rig 52], thus precluding OSHA's regulation under Section 4(b)(1) of the OSH Act." The Court of Appeals determined that this pre-emption encompassed uninspected vessels such as Rig 52, as well as inspected ones, explaining that the Coast Guard "has in fact exercised" its "authority to issue safety regulations for uninspected vessels"—as 4(b)(1) requires for pre-emption. (stating, with respect to uninspected vessels, that the Coast Guard has issued regulations concerning "life preservers and other life saving equipment; emergency alerting and locating equipment; fire extinguishing equipment; backfire flame control; ventilation of tanks and engine spaces; cooking, heating, and lighting systems; safety orientation and emergency instructions; action required after an accident; and signaling lights"). However, the court conceded that "[b]ecause a drilling barge is not self-propelled, some of these regulations, by their nature, do not apply to [Rig 52]." n. 6. Because other Courts of Appeals have construed the preemptive force of 4(b)(1) more narrowly than did the Fifth Circuit, akin to the interpretation adopted by the ALJ in this case,[5] we granted certiorari to resolve the conflict. We reverse, as the statute requires us to do. The OSH Act imposes on covered employers a duty to provide working conditions that "are free from recognized hazards that are causing or are likely to cause death or serious *241 bodily harm" to their employees, as well as an obligation to comply with safety standards promulgated by the Secretary of Labor. 29 U.S. C. 654(a)(1), (2).[6] The coverage of the Act does not, however, extend to working conditions that are regulated by other federal agencies. To avoid overlapping regulation, 4(b)(1) of the Act, as codified in 29 U.S. C. 653(b)(1), provides: "Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health." (Emphasis added.) Congress' use of the word "exercise" makes clear that, contrary to respondent's position, see, e. g., Tr. of Oral Arg. 39, mere possession by another federal agency of unexercised authority to regulate certain working conditions is insufficient to displace OSHA's jurisdiction. Furthermore, another federal agency's minimal exercise of some authority over certain conditions on vessels such as Rig 52 does not result in complete pre-emption of OSHA jurisdiction, because the statute also makes clear that OSHA is only preempted if the working conditions at issue are the particular ones "with respect to which" another federal agency has regulated, and if such regulations "affec[t] occupational safety or health." 653(b)(1).[7] To determine whether Coast Guard *242 regulations have pre-empted OSHA's jurisdiction over the working conditions on Rig 52, it is thus necessary to examine the contours of the Coast Guard's exercise of its statutory authority, not merely the existence of such authority. Congress has assigned a broad and important mission to the Coast Guard. Its governing statute provides, in part: "The Coast Guard shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department" 14 U.S. C. 2 ( ed.). Under this provision, the Coast Guard possesses authority to promulgate and enforce regulations promoting the safety of vessels anchored in state navigable waters, such as Rig 52. As mentioned above, however, in defining the Coast Guard's regulatory authority, Congress has divided the universe of vessels into two broad classes: "inspected vessels" and "uninspected vessels." In 46 U.S. C. 3301 (1994 ed. and Supp. V), Congress has listed 14 types of vessels that are "subject to inspection" by the Coast Guard pursuant to a substantial body of rules mandated by Congress.[8] In contrast, 46 *243 U. S. C. 2101(43) defines an "uninspected vessel" as "a vessel not subject to inspection under section 3301 that is not a recreational vessel." The parties do not dispute that OSHA's regulations have been pre-empted with respect to inspected vessels, because the Coast Guard has broad statutory authority to regulate the occupational health and safety of seamen aboard inspected vessels, 46 U.S. C. 3306 (1994 ed. and Supp. V), and it has exercised that authority. Indeed, the Coast Guard and OSHA signed a "Memorandum of Understanding" (MOU) on March 17, 1983, evidencing their agreement that, as a result of the Coast Guard's exercise of comprehensive authority over inspected vessels, OSHA "may not enforce the OSH Act with respect to the working conditions of seamen aboard inspected vessels." The MOU recognizes that the exercise of the Coast Guard's authority—and hence the displacement of OSHA jurisdiction— extends not only to those working conditions on inspected vessels specifically discussed by Coast Guard regulations, but to all working conditions on inspected vessels, including those "not addressed by the specific regulations." Thus, as OSHA recognized in the MOU, another agency may "exercise" its authority within the meaning of 4(b)(1) of the OSH Act either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels. Uninspected vessels such as Rig 52, however, present an entirely different regulatory situation. Nearly all of the Coast Guard regulations responsible for displacing OSHA's jurisdiction over inspected vessels, as described in the MOU, do not apply to uninspected vessels like Rig 52. See 46 U.S. C. 2101(43). Rather, in the context of uninspected vessels, the Coast Guard's regulatory authority—and exercise thereof—is more limited. With respect to uninspected vessels, the Coast Guard regulates matters related to marine *244 safety, such as fire extinguishers, life preservers, engine flame arrestors, engine ventilation, and emergency locating equipment. See 46 U.S. C. 4102 (1994 ed. and Supp. V); 46 CFR pts. 24-26 Because these general marine safety regulations do not address the occupational safety and health concerns faced by inland drilling operations on uninspected vessels, they do not pre-empt OSHA's authority under 4(b)(1) in this case. Indeed, as the Court of Appeals acknowledged, many of these general Coast Guard regulations for uninspected vessels do not even apply to stationary barges like Rig 52. See 212 F.3d, n. 6. In addition to issuing these general marine safety regulations, the Coast Guard has exercised its statutory authority to regulate a number of specific working conditions on certain types of uninspected vessels. For example, the Coast Guard regulates drilling operations that take place on the outer continental shelf. See 43 U.S. C. 1333(a)(1); 33 CFR pt. 142 And it is true that some of these more specific regulations would, pursuant to 4(b)(1), pre-empt OSHA regulations covering those particular working conditions and vessels. But respondent has not identified any specific Coast Guard regulations that address the types of risk and vessel at issue in this case: namely, dangers from oil-drilling operations on uninspected barges in inland waters. Simply because the Coast Guard has engaged in a limited exercise of its authority to address certain working conditions pertaining to certain classes of uninspected vessels does not mean that all OSHA regulation of all uninspected vessels has been pre-empted. See 29 U.S. C. 653(b)(1) (preemption only extends to working conditions "with respect to which" other federal agencies have exercised their authority (emphasis added)). Because the Coast Guard has neither affirmatively regulated the working conditions at issue in this case, nor asserted comprehensive regulatory jurisdiction *245 over working conditions on uninspected vessels, the Coast Guard has not "exercise[d]" its authority under 4(b)(1).[9] We think it equally clear that Rig 52 was a "workplace" as that term is defined in 4(a) of the Act. The vessel was located within the geographic area described in the definition: "a State," 29 U.S. C. 653(a), namely, Louisiana. Nothing in the text of 4(a) attaches any significance to the fact that the barge was anchored in navigable waters. Rather, the other geographic areas described in 4(a) support a reading of that provision that includes a State's navigable waters: for example, 4(a) covers the Outer Continental Shelf, and sensibly extends to drilling operations attached thereto. Cf. 43 U.S. C. 1333(a)(1). Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Justice Scalia took no part in the decision of this case.

Justice Stevens

concurring

Virginia v. Black

https://www.courtlistener.com/opinion/127908/virginia-v-black/

https://www.courtlistener.com/api/rest/v3/clusters/127908/

2002-039

Cross burning with "an intent to intimidate," Va. Code Ann. ง 18.2-423 (1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment. For the reasons stated in the separate opinions that Justice White and I wrote in R. A. V. v. St. Paul, 505 U.S. 377 (1992), that simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct. With this observation, I join JUSTICE O'CONNOR's opinion. JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to Parts I and II, concurring in part, concurring in the judgment in part, and dissenting in part. I agree with the Court that, under our decision in R. A. V. v. St. Paul, 505 U.S. 377 (1992), a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. Accordingly, I join Parts I-III of the Court's opinion. I also agree that we should vacate and remand the judgment of the Virginia Supreme Court so that that court can have an opportunity authoritatively to construe the prima-facie-evidence provision of Va. Code Ann. ง 18.2-423 (1996). I write separately, however, to describe what I believe to be the correct interpretation of ง 18.2-423, and to explain why I believe there is no justification for the plurality's apparent decision to invalidate that provision on its face. I Section 18.2-423 provides that the burning of a cross in public view "shall be prima facie evidence of an intent to intimidate." In order to determine whether this component *369 of the statute violates the Constitution, it is necessary, first, to establish precisely what the presentation of prima facie evidence accomplishes. Typically, "prima facie evidence" is defined as: "Such evidence as, in the judgment of the law, is sufficient to establish a given fact ... and which if not rebutted or contradicted, will remain sufficient. [Such evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence." Black's Law Dictionary 1190 (6th ed. 1990). The Virginia Supreme Court has, in prior cases, embraced this canonical understanding of the pivotal statutory language. E.g., Babbitt v. Miller, 192 Va. 372, 379-380, 64 S.E.2d 718, 722 (1951) ("Prima facie evidence is evidence which on its first appearance is sufficient to raise a presumption of fact or establish the fact in question unless rebutted"). For example, in Nance v. Commonwealth, 203 Va. 428, 124 S.E.2d 900 (1962), the Virginia Supreme Court interpreted a law of the Commonwealth that (1) prohibited the possession of certain "burglarious" tools "with intent to commit burglary, robbery, or larceny ...," and (2) provided that "[t]he possession of such burglarious tools ... shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Va. Code Ann. ง 18.1-87 (1960). The court explained that the prima-facie-evidence provision "cuts off no defense nor interposes any obstacle to a contest of the facts, and `relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.'" Nance v. Commonwealth, 203 Va., at 432, 124 S.E.2d, at 903-904; see also ibid., 124 S. E. 2d, at 904 (noting that the prima-facie-evidence provision "`is merely a rule of evidence and not the determination of a fact ...'"). The established meaning in Virginia, then, of the term "prima facie evidence" appears to be perfectly orthodox: It *370 is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. "Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose." 7B Michie's Jurisprudence of Virginia and West Virginia ง 32 (1998) (emphasis added). To be sure, Virginia is entirely free, if it wishes, to discard the canonical understanding of the term "prima facie evidence." Its courts are also permitted to interpret the phrase in different ways for purposes of different statutes. In this case, however, the Virginia Supreme Court has done nothing of the sort. To the extent that tribunal has spoken to the question of what "prima facie evidence" means for purposes of ง 18.2-423, it has not deviated a whit from its prior practice and from the ordinary legal meaning of these words. Rather, its opinion explained that under ง 18.2-423, "the act of burning a cross alone, with no evidence of intent to intimidate, will ... suffice for arrest and prosecution and will insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief." 262 Va. 764, 778, 553 S.E.2d 738, 746 (2001). Put otherwise, where the Commonwealth has demonstrated through its case in chief that the defendant burned a cross in public view, this is sufficient, at least until the defendant has come forward with rebuttal evidence, to create a jury issue with respect to the intent element of the offense. It is important to note that the Virginia Supreme Court did not suggest (as did the trial court's jury instructions in respondent Black's case, see infra, at 377) that a jury may, in light of the prima-facie-evidence provision, ignore any rebuttal evidence that has been presented and, solely on the basis of a showing that the defendant burned a cross, find that he intended to intimidate. Nor, crucially, did that court say that the presentation of prima facie evidence is always sufficient to get a case to a jury, i. e., that a court may never *371 direct a verdict for a defendant who has been shown to have burned a cross in public view, even if, by the end of trial, the defendant has presented rebuttal evidence. Instead, according to the Virginia Supreme Court, the effect of the prima-facie-evidence provision is far more limited. It suffices to "insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief," but it does nothing more. 262 Va., at 778, 553 S.E.2d, at 746 (emphasis added). That is, presentation of evidence that a defendant burned a cross in public view is automatically sufficient, on its own, to support an inference that the defendant intended to intimidate only until the defendant comes forward with some evidence in rebuttal. II The question presented, then, is whether, given this understanding of the term "prima facie evidence," the cross-burning statute is constitutional. The Virginia Supreme Court answered that question in the negative. It stated that "ง 18.2-423 sweeps within its ambit for arrest and prosecution, both protected and unprotected speech." Ibid. "The enhanced probability of prosecution under the statute chills the expression of protected speech sufficiently to render the statute overbroad." Id., at 777, 553 S.E.2d, at 746. This approach toward overbreadth analysis is unprecedented. We have never held that the mere threat that individuals who engage in protected conduct will be subject to arrest and prosecution suffices to render a statute overbroad. Rather, our overbreadth jurisprudence has consistently focused on whether the prohibitory terms of a particular statute extend to protected conduct; that is, we have inquired whether individuals who engage in protected conduct can be convicted under a statute, not whether they might be subject to arrest and prosecution. E. g., Houston v. Hill, 482 U.S. 451, 459 (1987) (a statute "that make[s] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid" (emphasis added)); Grayned v. City of Rockford, *372 408 U.S. 104, 114 (1972) (a statute may be overbroad "if in its reach it prohibits constitutionally protected conduct" (emphasis added)); R. A. V. v. St. Paul, 505 U. S., at 397 (White, J., concurring in judgment) (deeming the ordinance at issue "fatally overbroad because it criminalizes ... expression protected by the First Amendment" (emphasis added)). Unwilling to embrace the Virginia Supreme Court's novel mode of overbreadth analysis, today's opinion properly focuses on the question of who may be convicted, rather than who may be arrested and prosecuted, under ง 18.2-423. Thus, it notes that "[t]he prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense."[1]Ante, at 365 (emphasis added). In such cases, the plurality explains, "[t]he provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." Ibid. (emphasis added). And this, according to the plurality, is constitutionally problematic because "a burning cross is not always intended to intimidate," and nonintimidating cross burning cannot be prohibited. Ibid. In particular, the opinion notes that cross burning may serve as "a statement of ideology" or "a symbol of group solidarity" at Ku Klux Klan rituals, and may even serve artistic purposes as in the case of the film Mississippi Burning. Ante. at 365-366. The plurality is correct in all of this โ€” and it means that some individuals who engage in protected speech may, because *373 of the prima-facie-evidence provision, be subject to conviction. Such convictions, assuming they are unconstitutional, could be challenged on a case-by-case basis. The plurality, however, with little in the way of explanation, leaps to the conclusion that the possibility of such convictions justifies facial invalidation of the statute. In deeming ง 18.2-423 facially invalid, the plurality presumably means to rely on some species of overbreadth doctrine.[2] But it must be a rare species indeed. We have noted that "[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). If one looks only to the core provision of ง 18.2-423 โ€” "[i]t shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross ..." โ€” it appears not to capture any protected conduct; that language is limited in its reach to conduct *374 which a State is, under the Court's holding, ante, at 363, allowed to prohibit. In order to identify any protected conduct that is affected by Virginia's cross-burning law, the plurality is compelled to focus not on the statute's core prohibition, but on the prima-facie-evidence provision, and hence on the process through which the prohibited conduct may be found by a jury.[3] And even in that context, the plurality cannot claim that improper convictions will result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who might impermissibly be convicted by reason of that provision are those who adopt a particular trial strategy, to wit, abstaining from the presentation of a defense. The plurality is thus left with a strikingly attenuated argument to support the claim that Virginia's cross-burning statute is facially invalid. The class of persons that the plurality contemplates could impermissibly be convicted under ง 18.2-423 includes only those individuals who (1) burn a cross in public view, (2) do not intend to intimidate, (3) are nonetheless charged and prosecuted, and (4) refuse to present a defense. Ante, at 365 ("The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense"). Conceding (quite generously, in my view) that this class of persons exists, it cannot possibly give rise to a viable facial challenge, not even with the aid of our First Amendment *375 overbreadth doctrine. For this Court has emphasized repeatedly that "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Osborne v. Ohio, 495 U.S. 103, 112 (1990) (internal quotation marks omitted; emphasis added). See also Houston v. Hill, 482 U. S., at 458 ("Only a statute that is substantially overbroad may be invalidated on its face"); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) ("[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge"); New York v. Ferber, 458 U.S. 747, 771 (1982) ("[A] law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications ..."). The notion that the set of cases identified by the plurality in which convictions might improperly be obtained is sufficiently large to render the statute substantially overbroad is fanciful. The potential improper convictions of which the plurality complains are more appropriately classified as the sort of "marginal applications" of a statute in light of which "facial invalidation is inappropriate." Parker v. Levy, 417 U.S. 733, 760 (1974).[4] *376 Perhaps more alarming, the plurality concedes, ante, at 364, 365, that its understanding of the prima-facie-evidence provision is premised on the jury instructions given in respondent Black's case. This would all be well and good were it not for the fact that the plurality facially invalidates ง 18.2-423. Ante, at 367 ("[T]he prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face"). I am aware of no case โ€” and the plurality cites none โ€” in which we have facially invalidated an ambiguous statute on the basis of a constitutionally troubling jury instruction.[5] And it is altogether *377 unsurprising that there is no precedent for such a holding. For where state law is ambiguous, treating jury instructions as binding interpretations would cede an enormous measure of power over state law to trial judges. A single judge's idiosyncratic reading of a state statute could trigger its invalidation. In this case, the troubling instruction โ€” "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent," App. 196 โ€” was taken verbatim from Virginia's Model Jury Instructions. But these Model Instructions have been neither promulgated by the legislature nor formally adopted by the Virginia Supreme Court. And it is hornbook law, in Virginia as elsewhere, that "[p]roffered instructions which do not correctly state the law ... are erroneous and should be refused." 10A Michie's Jurisprudence of Virginia and West Virginia, Instructions ง 15, p. 35 (Supp. 2000). The plurality's willingness to treat this jury instruction as binding (and to strike down ง 18.2-423 on that basis) would be shocking enough had the Virginia Supreme Court offered no guidance as to the proper construction of the prima-facie-evidence provision. For ordinarily we would decline to pass upon the constitutionality of an ambiguous state statute until that State's highest court had provided a binding construction. *378 E. g., Arizonans for Official English v. Arizona, 520 U.S. 43, 78 (1997). If there is any exception to that rule, it is the case where one of two possible interpretations of the state statute would clearly render it unconstitutional, and the other would not. In that situation, applying the maxim "ut res magis valeat quam pereat" we would do precisely the opposite of what the plurality does here โ€” that is, we would adopt the alternative reading that renders the statute constitutional rather than unconstitutional. The plurality's analysis is all the more remarkable given the dissonance between the interpretation of ง 18.2-423 implicit in the jury instruction and the one suggested by the Virginia Supreme Court. That court's opinion did not state that, once proof of public cross burning is presented, a jury is permitted to infer an intent to intimidate solely on this basis and regardless of whether a defendant has offered evidence to rebut any such inference. To the contrary, in keeping with the black-letter understanding of "prima facie evidence," the Virginia Supreme Court explained that such evidence suffices only to "insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief." 262 Va., at 778, 553 S. E. 2d, at 746. The court did not so much as hint that a jury is permitted, under ง 18.2-423, to ignore rebuttal evidence and infer an intent to intimidate strictly on the basis of the prosecution's prima facie case. And unless and until the Supreme Court of Virginia tells us that the prima-facie-evidence provision permits a jury to infer intent under such conditions, this Court is entirely unjustified in facially invalidating ง 18.2-423 on this basis. As its concluding performance, in an apparent effort to paper over its unprecedented decision facially to invalidate a statute in light of an errant jury instruction, the plurality states: "We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision.... We also recognize the *379 theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility." Ante, at 367. Now this is truly baffling. Having declared, in the immediately preceding sentence, that ง 18.2-423 is "unconstitutional on its face," ibid. (emphasis added), the plurality holds out the possibility that the Virginia Supreme Court will offer some saving construction of the statute. It should go without saying that if a saving construction of ง 18.2-423 is possible, then facial invalidation is inappropriate. E. g., Harrison v. NAACP, 360 U.S. 167, 176 (1959) ("[N]o principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them"). So, what appears to have happened is that the plurality has facially invalidated not ง 18.2-423, but its own hypothetical interpretation of ง 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of ง 18.2-423. Words cannot express my wonderment at this virtuoso performance. III As the analysis in Part I, supra, demonstrates, I believe the prima-facie-evidence provision in Virginia's cross-burning statute is constitutionally unproblematic. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of ง 18.2-423, I concur in the Court's decision to vacate and remand the judgment with respect to respondents Elliott and O'Mara. I also agree that respondent Black's conviction cannot stand. As noted above, the jury in Black's case was instructed that "[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196 (emphasis *380 added). Where this instruction has been given, it is impossible to determine whether the jury has rendered its verdict (as it must) in light of the entire body of facts before it โ€” including evidence that might rebut the presumption that the cross burning was done with an intent to intimidate โ€” or, instead, has chosen to ignore such rebuttal evidence and focused exclusively on the fact that the defendant burned a cross.[6] Still, I cannot go along with the Court's decision to affirm the judgment with respect to Black. In that judgment, the Virginia Supreme Court, having erroneously concluded that ง 18.2-423 is overbroad, not only vacated Black's conviction, but dismissed the indictment against him as well. 262 Va., at 779, 553 S. E. 2d, at 746. Because I believe the constitutional defect in Black's conviction is rooted in a jury instruction and not in the statute itself, I would not dismiss the indictment and would permit the Commonwealth to retry Black if it wishes to do so. It is an interesting question whether the plurality's willingness to let the Virginia Supreme Court resolve the plurality's make-believe facial invalidation of the statute extends as well to the facial invalidation insofar as it supports dismissal of the indictment against Black. Logically, there is no reason why it would not. JUSTICE SOUTER, with whom JUSTICE KENNEDY and JUSTICE GINSBURG join, concurring in the judgment in part and dissenting in part. I agree with the majority that the Virginia statute makes a content-based distinction within the category of punishable intimidating or threatening expression, the very type of distinction *381 we considered in R. A. V. v. St. Paul, 505 U.S. 377 (1992). I disagree that any exception should save Virginia's law from unconstitutionality under the holding in R. A. V. or any acceptable variation of it. I The ordinance struck down in R. A. V., as it had been construed by the State's highest court, prohibited the use of symbols (including but not limited to a burning cross) as the equivalent of generally proscribable fighting words, but the ordinance applied only when the symbol was provocative "`on the basis of race, color, creed, religion or gender.'" Id., at 380 (quoting St. Paul, Minn., Legis. Code ง 292.02 (1990)). Although the Virginia statute in issue here contains no such express "basis of" limitation on prohibited subject matter, the specific prohibition of cross burning with intent to intimidate selects a symbol with particular content from the field of all proscribable expression meant to intimidate. To be sure, that content often includes an essentially intimidating message, that the cross burner will harm the victim, most probably in a physical way, given the historical identification of burning crosses with arson, beating, and lynching. But even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white Protestant supremacy. The ideological message not only accompanies many threatening uses of the symbol, but is also expressed when a burning cross is not used to threaten but merely to symbolize the supremacist ideology and the solidarity of those who espouse it. As the majority points out, the burning cross can broadcast threat and ideology together, ideology alone, or threat alone, as was apparently the choice of respondents Elliott and O'Mara. Ante, at 354-357, 363. The issue is whether the statutory prohibition restricted to this symbol falls within one of the exceptions to R. A. V.'s general condemnation of limited content-based proscription *382 within a broader category of expression proscribable generally. Because of the burning cross's extraordinary force as a method of intimidation, the R. A. V. exception most likely to cover the statute is the first of the three mentioned there, which the R. A. V. opinion called an exception for content discrimination on a basis that "consists entirely of the very reason the entire class of speech at issue is proscribable." 505 U.S., at 388. This is the exception the majority speaks of here as covering statutes prohibiting "particularly virulent" proscribable expression. Ante, at 363. I do not think that the Virginia statute qualifies for this virulence exception as R. A. V. explained it. The statute fits poorly with the illustrative examples given in R. A. V., none of which involves communication generally associated with a particular message, and in fact, the majority's discussion of a special virulence exception here moves that exception toward a more flexible conception than the version in R. A. V. I will reserve judgment on that doctrinal development, for even on a pragmatic conception of R. A. V. and its exceptions the Virginia statute could not pass muster, the most obvious hurdle being the statute's prima facie evidence provision. That provision is essential to understanding why the statute's tendency to suppress a message disqualifies it from any rescue by exception from R. A. V.'s general rule. II R. A. V. defines the special virulence exception to the rule barring content-based subclasses of categorically proscribable expression this way: prohibition by subcategory is nonetheless constitutional if it is made "entirely" on the "basis" of "the very reason" that "the entire class of speech at issue is proscribable" at all. 505 U.S., at 388. The Court explained that when the subcategory is confined to the most obviously proscribable instances, "no significant danger of idea or viewpoint discrimination exists," ibid., and the explanation *383 was rounded out with some illustrative examples. None of them, however, resembles the case before us.[1] The first example of permissible distinction is for a prohibition of obscenity unusually offensive "in its prurience," ibid. (emphasis deleted), with citation to a case in which the Seventh Circuit discussed the difference between obscene depictions of actual people and simulations. As that court noted, distinguishing obscene publications on this basis does not suggest discrimination on the basis of the message conveyed. Kucharek v. Hanaway, 902 F.2d 513, 517-518 (1990). The opposite is true, however, when a general prohibition of intimidation is rejected in favor of a distinct proscription of intimidation by cross burning. The cross may have been selected because of its special power to threaten, but it may also have been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of it was a civic embarrassment. Thus, there is no kinship between the cross-burning statute and the core prurience example. Nor does this case present any analogy to the statute prohibiting threats against the President, the second of R. A. V.'s examples of the virulence exception and the one the majority relies upon. Ante, at 362. The content discrimination in that statute relates to the addressee of the threat and reflects the special risks and costs associated with threatening the President. Again, however, threats against the President are not generally identified by reference to the content of any message that may accompany the threat, let alone any viewpoint, and there is no obvious correlation in fact between victim and message. Millions of statements are made about the President every day on every subject *384 and from every standpoint; threats of violence are not an integral feature of any one subject or viewpoint as distinct from others. Differential treatment of threats against the President, then, selects nothing but special risks, not special messages. A content-based proscription of cross burning, on the other hand, may be a subtle effort to ban not only the intensity of the intimidation cross burning causes when done to threaten, but also the particular message of white supremacy that is broadcast even by nonthreatening cross burning. I thus read R. A. V.'s examples of the particular virulence exception as covering prohibitions that are not clearly associated with a particular viewpoint, and that are consequently different from the Virginia statute. On that understanding of things, I necessarily read the majority opinion as treating R. A. V.'s virulence exception in a more flexible, pragmatic manner than the original illustrations would suggest. Ante, at 363. Actually, another way of looking at today's decision would see it as a slight modification of R. A. V.'s third exception, which allows content-based discrimination within a proscribable category when its "nature" is such "that there is no realistic possibility that official suppression of ideas is afoot." R. A. V., supra, at 390. The majority's approach could be taken as recognizing an exception to R. A. V. when circumstances show that the statute's ostensibly valid reason for punishing particularly serious proscribable expression probably is not a ruse for message suppression, even though the statute may have a greater (but not exclusive) impact on adherents of one ideology than on others, ante, at 362-363. III My concern here, in any event, is not with the merit of a pragmatic doctrinal move. For whether or not the Court should conceive of exceptions to R. A. V.'s general rule in a more practical way, no content-based statute should survive even under a pragmatic recasting of R. A. V. without a high probability that no "official suppression of ideas is afoot," *385 505 U. S., at 390. I believe the prima facie evidence provision stands in the way of any finding of such a high probability here. Virginia's statute provides that burning a cross on the property of another, a highway, or other public place is "prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. ง 18.2-423 (1996). While that language was added by amendment to the earlier portion of the statute criminalizing cross burning with intent to intimidate, ante, at 363 (plurality opinion), it was a part of the prohibitory statute at the time these respondents burned crosses, and the whole statute at the time of respondents' conduct is what counts for purposes of the First Amendment. As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. Ante, at 354-357. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public. In such a case, if the factfinder is aware of the prima facie evidence provision, as the jury was in respondent Black's case, ante, at 349-350, the provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. What is significant is not that the provision *386 permits a factfinder's conclusion that the defendant acted with proscribable and punishable intent without any further indication, because some such indication will almost always be presented. What is significant is that the provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The effect of such a distortion is difficult to remedy, since any guilty verdict will survive sufficiency review unless the defendant can show that, "viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression, as JUSTICE O'CONNOR notes. Ante, at 365-366 (plurality opinion). To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. Thus, the appropriate way to consider the statute's prima facie evidence term, in my view, is not as if it were an overbroad statutory definition amenable to severance or a narrowing construction. The question here is not the permissible scope of an arguably overbroad statute, but the claim of a clearly content-based statute to an exception from the general prohibition of content-based proscriptions, an exception that is not warranted if the statute's terms show that suppression of ideas may be afoot. Accordingly, the way to look at the prima facie evidence provision is to consider it for any indication of what is afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful. It is difficult to conceive of an intimidation case that could be easier to prove than one with cross burning, assuming *387 any circumstances suggesting intimidation are present. The provision, apparently so unnecessary to legitimate prosecution of intimidation, is therefore quite enough to raise the question whether Virginia's content-based statute seeks more than mere protection against a virulent form of intimidation. It consequently bars any conclusion that an exception to the general rule of R. A. V. is warranted on the ground "that there is no realistic [or little realistic] possibility that official suppression of ideas is afoot," 505 U.S., at 390.[2] Since no R. A. V. exception can save the statute as content based, it can only survive if narrowly tailored to serve a compelling state interest, id., at 395-396, a stringent test the statute cannot pass; a content-neutral statute banning intimidation would achieve the same object without singling out particular content. IV I conclude that the statute under which all three of the respondents were prosecuted violates the First Amendment, since the statute's content-based distinction was invalid at the time of the charged activities, regardless of whether the prima facie evidence provision was given any effect in any respondent's individual case. In my view, severance of the prima facie evidence provision now could not eliminate the unconstitutionality of the whole statute at the time of the respondents' conduct. I would therefore affirm the judgment of the Supreme Court of Virginia vacating the respondents' convictions and dismissing the indictments. Accordingly, I concur in the Court's judgment as to respondent Black and dissent as to respondents Elliott and O'Mara.

Cross burning with "an intent to intimidate," Va. Code Ann. ง 18.2-423 (1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment. For the reasons stated in the separate opinions that Justice White and wrote in R. A. V. v. St. that simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct. With this observation, join JUSTCE O'CONNOR's opinion. JUSTCE SCALA, with whom JUSTCE THOMAS joins as to Parts and concurring in part, concurring in the judgment in part, and dissenting in part. agree with the Court that, under our decision in R. A. V. v. St. a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. Accordingly, join Parts - of the Court's opinion. also agree that we should vacate and remand the judgment of the Virginia Supreme Court so that that court can have an opportunity authoritatively to construe the prima-facie-evidence provision of Va. Code Ann. ง 18.2-423 (1996). write separately, however, to describe what believe to be the correct interpretation of ง 18.2-423, and to explain why believe there is no justification for the plurality's apparent decision to invalidate that provision on its face. Section 18.2-423 provides that the burning of a cross in public view "shall be prima facie evidence of an intent to intimidate." n order to determine whether this component *369 of the statute violates the Constitution, it is necessary, first, to establish precisely what the presentation of prima facie evidence accomplishes. Typically, "prima facie evidence" is defined as: "Such evidence as, in the judgment of the law, is sufficient to establish a given fact and which if not rebutted or contradicted, will remain sufficient. [Such evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence." Black's Law Dictionary 1190 The Virginia Supreme Court has, in prior cases, embraced this canonical understanding of the pivotal statutory language. E.g., For example, in the Virginia Supreme Court interpreted a law of the that (1) prohibited the possession of certain "burglarious" tools "with intent to commit burglary, robbery, or larceny," and (2) provided that "[t]he possession of such burglarious tools shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Va. Code Ann. ง 18.1-87 (1960). The court explained that the prima-facie-evidence provision "cuts off no defense nor interposes any obstacle to a contest of the facts, and `relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.'" -904; see also 124 S. E. 2d, at 904 (noting that the prima-facie-evidence provision "`is merely a rule of evidence and not the determination of a fact'"). The established meaning in Virginia, then, of the term "prima facie evidence" appears to be perfectly orthodox: t *370 is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. "Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose." 7B Michie's Jurisprudence of Virginia and West Virginia ง 32 (1998) To be sure, Virginia is entirely free, if it wishes, to discard the canonical understanding of the term "prima facie evidence." ts courts are also permitted to interpret the phrase in different ways for purposes of different statutes. n this case, however, the Virginia Supreme Court has done nothing of the sort. To the extent that tribunal has spoken to the question of what "prima facie evidence" means for purposes of ง 18.2-423, it has not deviated a whit from its prior practice and from the ordinary legal meaning of these words. Rather, its opinion explained that under ง 18.2-423, "the act of burning a cross alone, with no evidence of intent to intimidate, will suffice for arrest and prosecution and will insulate the from a motion to strike the evidence at the end of its case-in-chief." Put otherwise, where the has demonstrated through its case in chief that the defendant burned a cross in public view, this is sufficient, at least until the defendant has come forward with rebuttal evidence, to create a jury issue with respect to the intent element of the offense. t is important to note that the Virginia Supreme Court did not suggest (as did the trial court's jury instructions in respondent Black's case, see infra, at 377) that a jury may, in light of the prima-facie-evidence provision, ignore any rebuttal evidence that has been presented and, solely on the basis of a showing that the defendant burned a cross, find that he intended to intimidate. Nor, crucially, did that court say that the presentation of prima facie evidence is always sufficient to get a case to a jury, i. e., that a court may never *371 direct a verdict for a defendant who has been shown to have burned a cross in public view, even if, by the end of trial, the defendant has presented rebuttal evidence. nstead, according to the Virginia Supreme Court, the effect of the prima-facie-evidence provision is far more limited. t suffices to "insulate the from a motion to strike the evidence at the end of its case-in-chief," but it does nothing more. 262 Va., at 553 S.E.2d, at That is, presentation of evidence that a defendant burned a cross in public view is automatically sufficient, on its own, to support an inference that the defendant intended to intimidate only until the defendant comes forward with some evidence in rebuttal. The question presented, then, is whether, given this understanding of the term "prima facie evidence," the cross-burning statute is constitutional. The Virginia Supreme Court answered that question in the negative. t stated that "ง 18.2-423 sweeps within its ambit for arrest and prosecution, both protected and unprotected speech." "The enhanced probability of prosecution under the statute chills the expression of protected speech sufficiently to render the statute overbroad." 553 S.E.2d, at This approach toward overbreadth analysis is unprecedented. We have never held that the mere threat that individuals who engage in protected conduct will be subject to arrest and prosecution suffices to render a statute overbroad. Rather, our overbreadth jurisprudence has consistently focused on whether the prohibitory terms of a particular statute extend to protected conduct; that is, we have inquired whether individuals who engage in protected conduct can be convicted under a statute, not whether they might be subject to arrest and prosecution. E. g., (a statute "that make[s] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid" ); (a statute may be overbroad "if in its reach it prohibits constitutionally protected conduct" ); R. A. V. v. St. (deeming the ordinance at issue "fatally overbroad because it criminalizes expression protected by the First Amendment" ). Unwilling to embrace the Virginia Supreme Court's novel mode of overbreadth analysis, today's opinion properly focuses on the question of who may be convicted, rather than who may be arrested and prosecuted, under ง 18.2-423. Thus, it notes that "[t]he prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense."[1]Ante, at 365 n such cases, the plurality explains, "[t]he provision permits the to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." And this, according to the plurality, is constitutionally problematic because "a burning cross is not always intended to intimidate," and nonintimidating cross burning cannot be prohibited. n particular, the opinion notes that cross burning may serve as "a statement of ideology" or "a symbol of group solidarity" at Ku Klux Klan rituals, and may even serve artistic purposes as in the case of the film Mississippi Burning. Ante. at 365-366. The plurality is correct in all of this โ€” and it means that some individuals who engage in protected speech may, because *373 of the prima-facie-evidence provision, be subject to conviction. Such convictions, assuming they are unconstitutional, could be challenged on a case-by-case basis. The plurality, however, with little in the way of explanation, leaps to the conclusion that the possibility of such convictions justifies facial invalidation of the statute. n deeming ง 18.2-423 facially invalid, the plurality presumably means to rely on some species of overbreadth doctrine.[2] But it must be a rare species indeed. We have noted that "[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman f one looks only to the core provision of ง 18.2-423 โ€” "[i]t shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross" โ€” it appears not to capture any protected conduct; that language is limited in its reach to conduct *374 which a State is, under the Court's holding, ante, at 363, allowed to prohibit. n order to identify any protected conduct that is affected by Virginia's cross-burning law, the plurality is compelled to focus not on the statute's core prohibition, but on the prima-facie-evidence provision, and hence on the process through which the prohibited conduct may be found by a jury.[3] And even in that context, the plurality cannot claim that improper convictions will result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who might impermissibly be convicted by reason of that provision are those who adopt a particular trial strategy, to wit, abstaining from the presentation of a defense. The plurality is thus left with a strikingly attenuated argument to support the claim that Virginia's cross-burning statute is facially invalid. The class of persons that the plurality contemplates could impermissibly be convicted under ง 18.2-423 includes only those individuals who (1) burn a cross in public view, (2) do not intend to intimidate, (3) are nonetheless charged and prosecuted, and (4) refuse to present a defense. Ante, at 365 ("The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense"). Conceding (quite generously, in my view) that this class of persons exists, it cannot possibly give rise to a viable facial challenge, not even with the aid of our First Amendment *375 overbreadth doctrine. For this Court has emphasized repeatedly that "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." See also ; Members of City Council of Los ; New The notion that the set of cases identified by the plurality in which convictions might improperly be obtained is sufficiently large to render the statute substantially overbroad is fanciful. The potential improper convictions of which the plurality complains are more appropriately classified as the sort of "marginal applications" of a statute in light of which "facial invalidation is inappropriate."[4] *376 Perhaps more alarming, the plurality concedes, ante, at 364, 365, that its understanding of the prima-facie-evidence provision is premised on the jury instructions given in respondent Black's case. This would all be well and good were it not for the fact that the plurality facially invalidates ง 18.2-423. Ante, at 367 ("[T]he prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face"). am aware of no case โ€” and the plurality cites none โ€” in which we have facially invalidated an ambiguous statute on the basis of a constitutionally troubling jury instruction.[5] And it is altogether *377 unsurprising that there is no precedent for such a holding. For where state law is ambiguous, treating jury instructions as binding interpretations would cede an enormous measure of power over state law to trial judges. A single judge's idiosyncratic reading of a state statute could trigger its invalidation. n this case, the troubling instruction โ€” "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent," App. 196 โ€” was taken verbatim from Virginia's Model Jury nstructions. But these Model nstructions have been neither promulgated by the legislature nor formally adopted by the Virginia Supreme Court. And it is hornbook law, in Virginia as elsewhere, that "[p]roffered instructions which do not correctly state the law are erroneous and should be refused." 10A Michie's Jurisprudence of Virginia and West Virginia, nstructions ง 15, p. 35 (Supp. 2000). The plurality's willingness to treat this jury instruction as binding (and to strike down ง 18.2-423 on that basis) would be shocking enough had the Virginia Supreme Court offered no guidance as to the proper construction of the prima-facie-evidence provision. For ordinarily we would decline to pass upon the constitutionality of an ambiguous state statute until that State's highest court had provided a binding construction. *3 E. g., Arizonans for Official f there is any exception to that rule, it is the case where one of two possible interpretations of the state statute would clearly render it unconstitutional, and the other would not. n that situation, applying the maxim "ut res magis valeat quam pereat" we would do precisely the opposite of what the plurality does here โ€” that is, we would adopt the alternative reading that renders the statute constitutional rather than unconstitutional. The plurality's analysis is all the more remarkable given the dissonance between the interpretation of ง 18.2-423 implicit in the jury instruction and the one suggested by the Virginia Supreme Court. That court's opinion did not state that, once proof of public cross burning is presented, a jury is permitted to infer an intent to intimidate solely on this basis and regardless of whether a defendant has offered evidence to rebut any such inference. To the contrary, in keeping with the black-letter understanding of "prima facie evidence," the Virginia Supreme Court explained that such evidence suffices only to "insulate the from a motion to strike the evidence at the end of its case-in-chief." 262 Va., at 553 S. E. 2d, at The court did not so much as hint that a jury is permitted, under ง 18.2-423, to ignore rebuttal evidence and infer an intent to intimidate strictly on the basis of the prosecution's prima facie case. And unless and until the Supreme Court of Virginia tells us that the prima-facie-evidence provision permits a jury to infer intent under such conditions, this Court is entirely unjustified in facially invalidating ง 18.2-423 on this basis. As its concluding performance, in an apparent effort to paper over its unprecedented decision facially to invalidate a statute in light of an errant jury instruction, the plurality states: "We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision. We also recognize the *379 theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility." Ante, at 367. Now this is truly baffling. Having declared, in the immediately preceding sentence, that ง 18.2-423 is "unconstitutional on its face," the plurality holds out the possibility that the Virginia Supreme Court will offer some saving construction of the statute. t should go without saying that if a saving construction of ง 18.2-423 is possible, then facial invalidation is inappropriate. E. g., So, what appears to have happened is that the plurality has facially invalidated not ง 18.2-423, but its own hypothetical interpretation of ง 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of ง 18.2-423. Words cannot express my wonderment at this virtuoso performance. As the analysis in Part demonstrates, believe the prima-facie-evidence provision in Virginia's cross-burning statute is constitutionally unproblematic. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of ง 18.2-423, concur in the Court's decision to vacate and remand the judgment with respect to respondents Elliott and O'Mara. also agree that respondent Black's conviction cannot stand. As noted above, the jury in Black's case was instructed that "[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196 (emphasis *380 added). Where this instruction has been given, it is impossible to determine whether the jury has rendered its verdict (as it must) in light of the entire body of facts before it โ€” including evidence that might rebut the presumption that the cross burning was done with an intent to intimidate โ€” or, instead, has chosen to ignore such rebuttal evidence and focused exclusively on the fact that the defendant burned a cross.[6] Still, cannot go along with the Court's decision to affirm the judgment with respect to Black. n that judgment, the Virginia Supreme Court, having erroneously concluded that ง 18.2-423 is overbroad, not only vacated Black's conviction, but dismissed the indictment against him as 553 S. E. 2d, at Because believe the constitutional defect in Black's conviction is rooted in a jury instruction and not in the statute itself, would not dismiss the indictment and would permit the to retry Black if it wishes to do so. t is an interesting question whether the plurality's willingness to let the Virginia Supreme Court resolve the plurality's make-believe facial invalidation of the statute extends as well to the facial invalidation insofar as it supports dismissal of the indictment against Black. Logically, there is no reason why it would not. JUSTCE SOUTER, with whom JUSTCE KENNEDY and JUSTCE GNSBURG join, concurring in the judgment in part and dissenting in part. agree with the majority that the Virginia statute makes a content-based distinction within the category of punishable intimidating or threatening expression, the very type of distinction *381 we considered in R. A. V. v. St. disagree that any exception should save Virginia's law from unconstitutionality under the holding in R. A. V. or any acceptable variation of it. The ordinance struck down in R. A. V., as it had been construed by the State's highest court, prohibited the use of symbols (including but not limited to a burning cross) as the equivalent of generally proscribable fighting words, but the ordinance applied only when the symbol was provocative "`on the basis of race, color, creed, religion or gender.'" ). Although the Virginia statute in issue here contains no such express "basis of" limitation on prohibited subject matter, the specific prohibition of cross burning with intent to intimidate selects a symbol with particular content from the field of all proscribable expression meant to intimidate. To be sure, that content often includes an essentially intimidating message, that the cross burner will harm the victim, most probably in a physical way, given the historical identification of burning crosses with arson, beating, and lynching. But even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white Protestant supremacy. The ideological message not only accompanies many threatening uses of the symbol, but is also expressed when a burning cross is not used to threaten but merely to symbolize the supremacist ideology and the solidarity of those who espouse it. As the majority points out, the burning cross can broadcast threat and ideology together, ideology alone, or threat alone, as was apparently the choice of respondents Elliott and O'Mara. Ante, at 354-357, 363. The issue is whether the statutory prohibition restricted to this symbol falls within one of the exceptions to R. A. V.'s general condemnation of limited content-based proscription *382 within a broader category of expression proscribable generally. Because of the burning cross's extraordinary force as a method of intimidation, the R. A. V. exception most likely to cover the statute is the first of the three mentioned there, which the R. A. V. opinion called an exception for content discrimination on a basis that "consists entirely of the very reason the entire class of speech at issue is proscribable." This is the exception the majority speaks of here as covering statutes prohibiting "particularly virulent" proscribable expression. Ante, at 363. do not think that the Virginia statute qualifies for this virulence exception as R. A. V. explained it. The statute fits poorly with the illustrative examples given in R. A. V., none of which involves communication generally associated with a particular message, and in fact, the majority's discussion of a special virulence exception here moves that exception toward a more flexible conception than the version in R. A. V. will reserve judgment on that doctrinal development, for even on a pragmatic conception of R. A. V. and its exceptions the Virginia statute could not pass muster, the most obvious hurdle being the statute's prima facie evidence provision. That provision is essential to understanding why the statute's tendency to suppress a message disqualifies it from any rescue by exception from R. A. V.'s general rule. R. A. V. defines the special virulence exception to the rule barring content-based subclasses of categorically proscribable expression this way: prohibition by subcategory is nonetheless constitutional if it is made "entirely" on the "basis" of "the very reason" that "the entire class of speech at issue is proscribable" at all. The Court explained that when the subcategory is confined to the most obviously proscribable instances, "no significant danger of idea or viewpoint discrimination exists," and the explanation *383 was rounded out with some illustrative examples. None of them, however, resembles the case before us.[1] The first example of permissible distinction is for a prohibition of obscenity unusually offensive "in its prurience," with citation to a case in which the Seventh Circuit discussed the difference between obscene depictions of actual people and simulations. As that court noted, distinguishing obscene publications on this basis does not suggest discrimination on the basis of the message conveyed. The opposite is true, however, when a general prohibition of intimidation is rejected in favor of a distinct proscription of intimidation by cross burning. The cross may have been selected because of its special power to threaten, but it may also have been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of it was a civic embarrassment. Thus, there is no kinship between the cross-burning statute and the core prurience example. Nor does this case present any analogy to the statute prohibiting threats against the President, the second of R. A. V.'s examples of the virulence exception and the one the majority relies upon. Ante, at 362. The content discrimination in that statute relates to the addressee of the threat and reflects the special risks and costs associated with threatening the President. Again, however, threats against the President are not generally identified by reference to the content of any message that may accompany the threat, let alone any viewpoint, and there is no obvious correlation in fact between victim and message. Millions of statements are made about the President every day on every subject *384 and from every standpoint; threats of violence are not an integral feature of any one subject or viewpoint as distinct from others. Differential treatment of threats against the President, then, selects nothing but special risks, not special messages. A content-based proscription of cross burning, on the other hand, may be a subtle effort to ban not only the intensity of the intimidation cross burning causes when done to threaten, but also the particular message of white supremacy that is broadcast even by nonthreatening cross burning. thus read R. A. V.'s examples of the particular virulence exception as covering prohibitions that are not clearly associated with a particular viewpoint, and that are consequently different from the Virginia statute. On that understanding of things, necessarily read the majority opinion as treating R. A. V.'s virulence exception in a more flexible, pragmatic manner than the original illustrations would suggest. Ante, at 363. Actually, another way of looking at today's decision would see it as a slight modification of R. A. V.'s third exception, which allows content-based discrimination within a proscribable category when its "nature" is such "that there is no realistic possibility that official suppression of ideas is afoot." R. A. V., The majority's approach could be taken as recognizing an exception to R. A. V. when circumstances show that the statute's ostensibly valid reason for punishing particularly serious proscribable expression probably is not a ruse for message suppression, even though the statute may have a greater (but not exclusive) impact on adherents of one ideology than on others, ante, at 362-363. My concern here, in any event, is not with the merit of a pragmatic doctrinal move. For whether or not the Court should conceive of exceptions to R. A. V.'s general rule in a more practical way, no content-based statute should survive even under a pragmatic recasting of R. A. V. without a high probability that no "official suppression of ideas is afoot," * 505 U. S., believe the prima facie evidence provision stands in the way of any finding of such a high probability here. Virginia's statute provides that burning a cross on the property of another, a highway, or other public place is "prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. ง 18.2-423 (1996). While that language was added by amendment to the earlier portion of the statute criminalizing cross burning with intent to intimidate, ante, at 363 (plurality opinion), it was a part of the prohibitory statute at the time these respondents burned crosses, and the whole statute at the time of respondents' conduct is what counts for purposes of the First Amendment. As see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. Ante, at 354-357. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. n the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public. n such a case, if the factfinder is aware of the prima facie evidence provision, as the jury was in respondent Black's case, ante, at 349-350, the provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. What is significant is not that the provision *386 permits a factfinder's conclusion that the defendant acted with proscribable and punishable intent without any further indication, because some such indication will almost always be presented. What is significant is that the provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The effect of such a distortion is difficult to remedy, since any guilty verdict will survive sufficiency review unless the defendant can show that, "viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression, as JUSTCE O'CONNOR notes. Ante, at 365-366 (plurality opinion). To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. Thus, the appropriate way to consider the statute's prima facie evidence term, in my view, is not as if it were an overbroad statutory definition amenable to severance or a narrowing construction. The question here is not the permissible scope of an arguably overbroad statute, but the claim of a clearly content-based statute to an exception from the general prohibition of content-based proscriptions, an exception that is not warranted if the statute's terms show that suppression of ideas may be afoot. Accordingly, the way to look at the prima facie evidence provision is to consider it for any indication of what is afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful. t is difficult to conceive of an intimidation case that could be easier to prove than one with cross burning, assuming *387 any circumstances suggesting intimidation are present. The provision, apparently so unnecessary to legitimate prosecution of intimidation, is therefore quite enough to raise the question whether Virginia's content-based statute seeks more than mere protection against a virulent form of intimidation. t consequently bars any conclusion that an exception to the general rule of R. A. V. is warranted on the ground "that there is no realistic [or little realistic] possibility that official suppression of ideas is afoot," 505 U.S.,[2] Since no R. A. V. exception can save the statute as content based, it can only survive if narrowly tailored to serve a compelling state interest, a stringent test the statute cannot pass; a content-neutral statute banning intimidation would achieve the same object without singling out particular content. V conclude that the statute under which all three of the respondents were prosecuted violates the First Amendment, since the statute's content-based distinction was invalid at the time of the charged activities, regardless of whether the prima facie evidence provision was given any effect in any respondent's individual case. n my view, severance of the prima facie evidence provision now could not eliminate the unconstitutionality of the whole statute at the time of the respondents' conduct. would therefore affirm the judgment of the Supreme Court of Virginia vacating the respondents' convictions and dismissing the indictments. Accordingly, concur in the Court's judgment as to respondent Black and dissent as to respondents Elliott and O'Mara.

Justice Rehnquist

majority

O'Lone v. Estate of Shabazz

https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/

https://www.courtlistener.com/api/rest/v3/clusters/111913/

1986-119

This case requires us to consider once again the standard of review for prison regulations claimed to inhibit the exercise of constitutional rights. Respondents, members of the Islamic *345 faith, were prisoners in New Jersey's Leesburg State Prison.[1] They challenged policies adopted by prison officials which resulted in their inability to attend Jumu'ah, a weekly Muslim congregational service regularly held in the main prison building and in a separate facility known as "the Farm." Jumu'ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. See Koran 62: 9-10; Brief for Imam Jamil Abdullah Al-Amin et al. as Amici Curiae 18-31. There is no question that respondents' sincerely held religious beliefs compelled attendance at Jumu'ah. We hold that the prison regulations here challenged did not violate respondents' rights under the Free Exercise Clause of the First Amendment to the United States Constitution. Inmates at Leesburg are placed in one of three custody classifications. Maximum security and "gang minimum" security inmates are housed in the main prison building, and those with the lowest classification — full minimum — live in "the Farm." Both respondents were classified as gang minimum security prisoners when this suit was filed, and respondent Mateen was later classified as full minimum. Several changes in prison policy prompted this litigation. In April 1983, the New Jersey Department of Corrections issued Standard 853, which provided that inmates could no longer move directly from maximum security to full minimum status, but were instead required to first spend a period of time in the intermediate gang minimum status. App. 147. This change was designed to redress problems that had arisen when inmates were transferred directly from the restrictive maximum security status to full minimum status, with its markedly higher level of freedom. Because of serious overcrowding in the main building, Standard 853 further mandated that gang minimum inmates ordinarily be assigned jobs outside the main building. Ibid. These inmates work in details of 8 to 15 persons, supervised by one guard. *346 Standard 853 also required that full minimum inmates work outside the main institution, whether on or off prison grounds, or in a satellite building such as the Farm. Ibid. Corrections officials at Leesburg implemented these policies gradually and, as the District Court noted, with some difficulty. Shabazz v. O'Lone, 595 F. Supp. 928, 929 (NJ 1984). In the initial stages of outside work details for gang minimum prisoners, officials apparently allowed some Muslim inmates to work inside the main building on Fridays so that they could attend Jumu'ah. This alternative was eventually eliminated in March 1984, in light of the directive of Standard 853 that all gang minimum inmates work outside the main building. Significant problems arose with those inmates assigned to outside work details. Some avoided reporting for their assignments, while others found reasons for returning to the main building during the course of the workday (including their desire to attend religious services). Evidence showed that the return of prisoners during the day resulted in security risks and administrative burdens that prison officials found unacceptable. Because details of inmates were supervised by only one guard, the whole detail was forced to return to the main gate when one prisoner desired to return to the facility. The gate was the site of all incoming foot and vehicle traffic during the day, and prison officials viewed it as a high security risk area. When an inmate returned, vehicle traffic was delayed while the inmate was logged in and searched. In response to these burdens, Leesburg officials took steps to ensure that those assigned to outside details remained there for the whole day. Thus, arrangements were made to have lunch and required medications brought out to the prisoners, and appointments with doctors and social workers were scheduled for the late afternoon. These changes proved insufficient, however, and prison officials began to study alternatives. After consulting with the director of social services, the director of professional services, and the *347 prison's imam and chaplain, prison officials in March 1984 issued a policy memorandum which prohibited inmates assigned to outside work details from returning to the prison during the day except in the case of emergency. The prohibition of returns prevented Muslims assigned to outside work details from attending Jumu'ah. Respondents filed suit under 42 U.S. C. § 1983, alleging that the prison policies unconstitutionally denied them their Free Exercise rights under the First Amendment, as applied to the States through the Fourteenth Amendment. The District Court, applying the standards announced in an earlier decision of the Court of Appeals for the Third Circuit, concluded that no constitutional violation had occurred. The District Court decided that Standard 853 and the March 1984 prohibition on returns "plausibly advance" the goals of security, order, and rehabilitation. 595 F. Supp., at 934. It rejected alternative arrangements suggested by respondents, finding that "no less restrictive alternative could be adopted without potentially compromising a legitimate institutional objective." Ibid. The Court of Appeals, sua sponte hearing the case en banc, decided that its earlier decision relied upon by the District Court was not sufficiently protective of prisoners' free exercise rights, and went on to state that prison policies could be sustained only if: "the state . . . show[s] that the challenged regulations were intended to serve, and do serve, the important penological goal of security, and that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems. The expert testimony of prison officials should be given due weight, but such testimony is not dispositive of the issue whether no reasonable adjustment is possible.. . . Where it is found that reasonable methods of accommodation can be adopted without sacrificing either the State's interest in security or the prisoners' interest *348 in freely exercising their religious rights, the State's refusal to allow the observance of a central religious practice cannot be justified and violates the prisoner's first amendment rights." Shabazz v. O'Lone, 782 F.2d 416, 420 (CA3 1986) (footnotes omitted). In considering whether a potential method of accommodation is reasonable, the court added, relevant factors include cost, the effects of overcrowding, understaffing, and inmates' demonstrated proclivity to unruly conduct. See id., at 420, n. 3. The case was remanded to the District Court for reconsideration under the standards enumerated in the opinion. We granted certiorari to consider the important federal constitutional issues presented by the Court of Appeals' decision, and to resolve apparent confusion among the Courts of Appeals on the proper standards to be applied in considering prisoners' free exercise claims. 479 U.S. 881 (1986). Several general principles guide our consideration of the issues presented here. First, "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545 (1979). See Turner v. Safley, ante, at 84; Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977). Inmates clearly retain protections afforded by the First Amendment, Pell v. Procunier, 417 U.S. 817, 822 (1974), including its directive that no law shall prohibit the free exercise of religion. See Cruz v. Beto, 405 U.S. 319 (1972) (per curiam). Second, "[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." Price v. Johnston, 334 U.S. 266, 285 (1948). The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives — including deterrence of crime, rehabilitation of prisoners, and institutional security. Pell v. Procunier, supra, at 822-823; Procunier v. Martinez, 416 U.S. 396, 412 (1974). *349 In considering the appropriate balance of these factors, we have often said that evaluation of penological objectives is committed to the considered judgment of prison administrators, "who are actually charged with and trained in the running of the particular institution under examination." Bell v. Wolfish, supra, at 562. See Turner v. Safley, ante, at 86-87. To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a "reasonableness" test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights. See, e. g., Jones v. North Carolina Prisoners' Labor Union, Inc., supra, at 128. We recently restated the proper standard: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, ante, at 89.[2] This approach ensures the ability of corrections officials "to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration," ibid., and avoids unnecessary intrusion of the judiciary into problems particularly *350 ill suited to "resolution by decree." Procunier v. Martinez, supra, at 405. See also Turner v. Safley, ante, at 89; Bell v. Wolfish, supra, at 548. We think the Court of Appeals decision in this case was wrong when it established a separate burden on prison officials to prove "that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems." 782 F.2d, at 420. See also id., at 419 (Prison officials should be required "to produce convincing evidence that they are unable to satisfy their institutional goals in any way that does not infringe inmates' free exercise rights"). Though the availability of accommodations is relevant to the reasonableness inquiry, we have rejected the notion that "prison officials . . . have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Turner v. Safley, ante, at 90-91. By placing the burden on prison officials to disprove the availability of alternatives, the approach articulated by the Court of Appeals fails to reflect the respect and deference that the United States Constitution allows for the judgment of prison administrators. Turning to consideration of the policies challenged in this case, we think the findings of the District Court establish clearly that prison officials have acted in a reasonable manner. Turner v. Safley drew upon our previous decisions to identify several factors relevant to this reasonableness determination. First, a regulation must have a logical connection to legitimate governmental interests invoked to justify it. Ante, at 89-90. The policies at issue here clearly meet that standard. The requirement that full minimum and gang minimum prisoners work outside the main facility was justified by concerns of institutional order and security, for the District Court found that it was "at least in part a response to a critical overcrowding in the state's prisons, and . . . at least in part designed to ease tension and drain on the facilities *351 during that part of the day when the inmates were outside the confines of the main buildings." 595 F. Supp., at 929. We think it beyond doubt that the standard is related to this legitimate concern. The subsequent policy prohibiting returns to the institution during the day also passes muster under this standard. Prison officials testified that the returns from outside work details generated congestion and delays at the main gate, a high risk area in any event. Return requests also placed pressure on guards supervising outside details, who previously were required to "evaluate each reason possibly justifying a return to the facilities and either accept or reject that reason." Id., at 931. Rehabilitative concerns further supported the policy; corrections officials sought a simulation of working conditions and responsibilities in society. Chief Deputy Ucci testified: "One of the things that society demands or expects is that when you have a job, you show up on time, you put in your eight hours, or whatever hours you are supposed to put in, and you don't get off . . . . If we can show inmates that they're supposed to show up for work and work a full day, then when they get out at least we've done something." Tr. 89. These legitimate goals were advanced by the prohibition on returns; it cannot seriously be maintained that "the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner v. Safley, ante, at 89-90. Our decision in Turner also found it relevant that "alternative means of exercising the right . . . remain open to prison inmates." Ante, at 90. There are, of course, no alternative means of attending Jumu'ah; respondents' religious beliefs insist that it occur at a particular time. But the very stringent requirements as to the time at which Jumu'ah may be held may make it extraordinarily difficult for prison officials to assure that every Muslim prisoner is able to attend that service. While we in no way minimize the central importance of Jumu'ah to respondents, we are unwilling to hold that prison *352 officials are required by the Constitution to sacrifice legitimate penological objectives to that end. In Turner, we did not look to see whether prisoners had other means of communicating with fellow inmates, but instead examined whether the inmates were deprived of "all means of expression." Ante, at 92. Here, similarly, we think it appropriate to see whether under these regulations respondents retain the ability to participate in other Muslim religious ceremonies. The record establishes that respondents are not deprived of all forms of religious exercise, but instead freely observe a number of their religious obligations. The right to congregate for prayer or discussion is "virtually unlimited except during working hours," Tr. 182 (testimony of O'Lone), and the state-provided imam has free access to the prison. Muslim prisoners are given different meals whenever pork is served in the prison cafeteria. Special arrangements are also made during the month-long observance of Ramadan, a period of fasting and prayer. During Ramadan, Muslim prisoners are awakened at 4 a.m. for an early breakfast, and receive dinner at 8:30 each evening. We think this ability on the part of respondents to participate in other religious observances of their faith supports the conclusion that the restrictions at issue here were reasonable. Finally, the case for the validity of these regulations is strengthened by examination of the impact that accommodation of respondents' asserted right would have on other inmates, on prison personnel, and on allocation of prison resources generally. See Turner v. Safley, ante, at 90. Respondents suggest several accommodations of their practices, including placing all Muslim inmates in one or two inside work details or providing weekend labor for Muslim inmates. See Brief for Respondents 52-53. As noted by the District Court, however, each of respondents' suggested accommodations would, in the judgment of prison officials, have adverse effects on the institution. Inside work details for gang minimum inmates would be inconsistent with the legitimate concerns *353 underlying Standard 853, and the District Court found that the extra supervision necessary to establish weekend details for Muslim prisoners "would be a drain on scarce human resources" at the prison. 595 F. Supp., at 932. Prison officials determined that the alternatives would also threaten prison security by allowing "affinity groups" in the prison to flourish. Administrator O'Lone testified that "we have found out and think almost every prison administrator knows that any time you put a group of individuals together with one particular affinity interest . . . you wind up with . . . a leadership role and an organizational structure that will almost invariably challenge the institutional authority." Tr. 179-180. Finally, the officials determined that special arrangements for one group would create problems as "other inmates [see] that a certain segment is escaping a rigorous work detail" and perceive favoritism. Id., at 178-179. These concerns of prison administrators provide adequate support for the conclusion that accommodations of respondents' request to attend Jumu'ah would have undesirable results in the institution. These difficulties also make clear that there are no "obvious, easy alternatives to the policy adopted by petitioners." Turner v. Safley, ante, at 93. We take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to "substitute our judgment on . . . difficult and sensitive matters of institutional administration," Block v. Rutherford, 468 U.S. 576, 588 (1984), for the determinations of those charged with the formidable task of running a prison. Here the District Court decided that the regulations alleged to infringe constitutional rights were reasonably related to legitimate penological objectives. We agree with the District Court, and it necessarily follows that the regulations in question do not offend the Free Exercise Clause of the First Amendment to the United States Constitution. The judgment of the Court of Appeals is therefore Reversed.

This case requires us to consider once again the standard of review for prison regulations claimed to inhibit the exercise of constitutional rights. Respondents, members of the Islamic *345 faith, were prisoners in New Jersey's Leesburg State Prison.[1] They challenged policies adopted by prison officials which resulted in their inability to attend Jumu'ah, a weekly Muslim congregational service regularly held in the main prison building and in a separate facility known as "the Farm." Jumu'ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. See Koran 62: 9-10; Brief for Imam Jamil Abdullah Al-Amin et al. as Amici Curiae 18-31. There is no question that respondents' sincerely held religious beliefs compelled attendance at Jumu'ah. We hold that the prison regulations here challenged did not violate respondents' rights under the Free Exercise Clause of the First Amendment to the United States Constitution. Inmates at Leesburg are placed in one of three custody classifications. Maximum security and "gang minimum" security inmates are housed in the main prison building, and those with the lowest classification — full minimum — live in "the Farm." Both respondents were classified as gang minimum security prisoners when this suit was filed, and respondent Mateen was later classified as full minimum. Several changes in prison policy prompted this litigation. In April 1983, the New Jersey Department of Corrections issued Standard 853, which provided that inmates could no longer move directly from maximum security to full minimum status, but were instead required to first spend a period of time in the intermediate gang minimum status. App. 147. This change was designed to redress problems that had arisen when inmates were transferred directly from the restrictive maximum security status to full minimum status, with its markedly higher level of freedom. Because of serious overcrowding in the main building, Standard 853 further mandated that gang minimum inmates ordinarily be assigned jobs outside the main building. These inmates work in details of 8 to 15 persons, supervised by one guard. *346 Standard 853 also required that full minimum inmates work outside the main institution, whether on or off prison grounds, or in a satellite building such as the Farm. Corrections officials at Leesburg implemented these policies gradually and, as the District Court noted, with some difficulty. In the initial stages of outside work details for gang minimum prisoners, officials apparently allowed some Muslim inmates to work inside the main building on Fridays so that they could attend Jumu'ah. This alternative was eventually eliminated in March in light of the directive of Standard 853 that all gang minimum inmates work outside the main building. Significant problems arose with those inmates assigned to outside work details. Some avoided reporting for their assignments, while others found reasons for returning to the main building during the course of the workday (including their desire to attend religious services). Evidence showed that the return of prisoners during the day resulted in security risks and administrative burdens that prison officials found unacceptable. Because details of inmates were supervised by only one guard, the whole detail was forced to return to the main gate when one prisoner desired to return to the facility. The gate was the site of all incoming foot and vehicle traffic during the day, and prison officials viewed it as a high security risk area. When an inmate returned, vehicle traffic was delayed while the inmate was logged in and searched. In response to these burdens, Leesburg officials took steps to ensure that those assigned to outside details remained there for the whole day. Thus, arrangements were made to have lunch and required medications brought out to the prisoners, and appointments with doctors and social workers were scheduled for the late afternoon. These changes proved insufficient, however, and prison officials began to study alternatives. After consulting with the director of social services, the director of professional services, and the *347 prison's imam and chaplain, prison officials in March issued a policy memorandum which prohibited inmates assigned to outside work details from returning to the prison during the day except in the case of emergency. The prohibition of returns prevented Muslims assigned to outside work details from attending Jumu'ah. Respondents filed suit under 42 U.S. C. 1983, alleging that the prison policies unconstitutionally denied them their Free Exercise rights under the First Amendment, as applied to the States through the Fourteenth Amendment. The District Court, applying the standards announced in an earlier decision of the Court of Appeals for the Third Circuit, concluded that no constitutional violation had occurred. The District Court decided that Standard 853 and the March prohibition on returns "plausibly advance" the goals of security, order, and rehabilitation. It rejected alternative arrangements suggested by respondents, finding that "no less restrictive alternative could be adopted without potentially compromising a legitimate institutional objective." The Court of Appeals, sua sponte hearing the case en banc, decided that its earlier decision relied upon by the District Court was not sufficiently protective of prisoners' free exercise rights, and went on to state that prison policies could be sustained only if: "the state show[s] that the challenged regulations were intended to serve, and do serve, the important penological goal of security, and that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems. The expert testimony of prison officials should be given due weight, but such testimony is not dispositive of the issue whether no reasonable adjustment is possible. Where it is found that reasonable methods of accommodation can be adopted without sacrificing either the State's interest in security or the prisoners' interest *348 in freely exercising their religious rights, the State's refusal to allow the observance of a central religious practice cannot be justified and violates the prisoner's first amendment rights." In considering whether a potential method of accommodation is reasonable, the court added, relevant factors include cost, the effects of overcrowding, understaffing, and inmates' demonstrated proclivity to unruly conduct. See at n. 3. The case was remanded to the District Court for reconsideration under the standards enumerated in the opinion. We granted certiorari to consider the important federal constitutional issues presented by the Court of Appeals' decision, and to resolve apparent confusion among the Courts of Appeals on the proper standards to be applied in considering prisoners' free exercise claims. Several general principles guide our consideration of the issues presented here. First, "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." See Turner v. Safley, ante, at 84; Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion. See Second, "[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." The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives — including deterrence of crime, rehabilitation of prisoners, and institutional security. at -823; v. *349 In considering the appropriate balance of these factors, we have often said that evaluation of penological objectives is committed to the considered judgment of prison administrators, "who are actually charged with and trained in the running of the particular institution under examination." See Turner v. Safley, ante, at 86-87. To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a "reasonableness" test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights. See, e. g., We recently restated the proper standard: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, ante, at 89.[2] This approach ensures the ability of corrections officials "to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration," ib and avoids unnecessary intrusion of the judiciary into problems particularly *350 ill suited to "resolution by decree." v. See also Turner v. Safley, ante, at 89; We think the Court of Appeals decision in this case was wrong when it established a separate burden on prison officials to prove "that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems." 782 F.2d, at See also Though the availability of accommodations is relevant to the reasonableness inquiry, we have rejected the notion that "prison officials have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Turner v. Safley, ante, at 90-91. By placing the burden on prison officials to disprove the availability of alternatives, the approach articulated by the Court of Appeals fails to reflect the respect and deference that the United States Constitution allows for the judgment of prison administrators. Turning to consideration of the policies challenged in this case, we think the findings of the District Court establish clearly that prison officials have acted in a reasonable manner. Turner v. Safley drew upon our previous decisions to identify several factors relevant to this reasonableness determination. First, a regulation must have a logical connection to legitimate governmental interests invoked to justify it. Ante, at 89-90. The policies at issue here clearly meet that standard. The requirement that full minimum and gang minimum prisoners work outside the main facility was justified by concerns of institutional order and security, for the District Court found that it was "at least in part a response to a critical overcrowding in the state's prisons, and at least in part designed to ease tension and drain on the facilities *351 during that part of the day when the inmates were outside the confines of the main buildings." 595 F. Supp., at We think it beyond doubt that the standard is related to this legitimate concern. The subsequent policy prohibiting returns to the institution during the day also passes muster under this standard. Prison officials testified that the returns from outside work details generated congestion and delays at the main gate, a high risk area in any event. Return requests also placed pressure on guards supervising outside details, who previously were required to "evaluate each reason possibly justifying a return to the facilities and either accept or reject that reason." Rehabilitative concerns further supported the policy; corrections officials sought a simulation of working conditions and responsibilities in society. Chief Deputy Ucci testified: "One of the things that society demands or expects is that when you have a job, you show up on time, you put in your eight hours, or whatever hours you are supposed to put in, and you don't get off If we can show inmates that they're supposed to show up for work and work a full day, then when they get out at least we've done something." Tr. 89. These legitimate goals were advanced by the prohibition on returns; it cannot seriously be maintained that "the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner v. Safley, ante, at 89-90. Our decision in Turner also found it relevant that "alternative means of exercising the right remain open to prison inmates." Ante, at 90. There are, of course, no alternative means of attending Jumu'ah; respondents' religious beliefs insist that it occur at a particular time. But the very stringent requirements as to the time at which Jumu'ah may be held may make it extraordinarily difficult for prison officials to assure that every Muslim prisoner is able to attend that service. While we in no way minimize the central importance of Jumu'ah to respondents, we are unwilling to hold that prison *352 officials are required by the Constitution to sacrifice legitimate penological objectives to that end. In Turner, we did not look to see whether prisoners had other means of communicating with fellow inmates, but instead examined whether the inmates were deprived of "all means of expression." Ante, at 92. Here, similarly, we think it appropriate to see whether under these regulations respondents retain the ability to participate in other Muslim religious ceremonies. The record establishes that respondents are not deprived of all forms of religious exercise, but instead freely observe a number of their religious obligations. The right to congregate for prayer or discussion is "virtually unlimited except during working hours," Tr. 182 (testimony of O'Lone), and the state-provided imam has free access to the prison. Muslim prisoners are given different meals whenever pork is served in the prison cafeteria. Special arrangements are also made during the month-long observance of Ramadan, a period of fasting and prayer. During Ramadan, Muslim prisoners are awakened at 4 a.m. for an early breakfast, and receive dinner at 8:30 each evening. We think this ability on the part of respondents to participate in other religious observances of their faith supports the conclusion that the restrictions at issue here were reasonable. Finally, the case for the validity of these regulations is strengthened by examination of the impact that accommodation of respondents' asserted right would have on other inmates, on prison personnel, and on allocation of prison resources generally. See Turner v. Safley, ante, at 90. Respondents suggest several accommodations of their practices, including placing all Muslim inmates in one or two inside work details or providing weekend labor for Muslim inmates. See Brief for Respondents 52-53. As noted by the District Court, however, each of respondents' suggested accommodations would, in the judgment of prison officials, have adverse effects on the institution. Inside work details for gang minimum inmates would be inconsistent with the legitimate concerns *353 underlying Standard 853, and the District Court found that the extra supervision necessary to establish weekend details for Muslim prisoners "would be a drain on scarce human resources" at the prison. Prison officials determined that the alternatives would also threaten prison security by allowing "affinity groups" in the prison to flourish. Administrator O'Lone testified that "we have found out and think almost every prison administrator knows that any time you put a group of individuals together with one particular affinity interest you wind up with a leadership role and an organizational structure that will almost invariably challenge the institutional authority." Tr. 179-180. Finally, the officials determined that special arrangements for one group would create problems as "other inmates [see] that a certain segment is escaping a rigorous work detail" and perceive favoritism. These concerns of prison administrators provide adequate support for the conclusion that accommodations of respondents' request to attend Jumu'ah would have undesirable results in the institution. These difficulties also make clear that there are no "obvious, easy alternatives to the policy adopted by petitioners." Turner v. Safley, ante, at 93. We take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to "substitute our judgment on difficult and sensitive matters of institutional administration," for the determinations of those charged with the formidable task of running a prison. Here the District Court decided that the regulations alleged to infringe constitutional rights were reasonably related to legitimate penological objectives. We agree with the District Court, and it necessarily follows that the regulations in question do not offend the Free Exercise Clause of the First Amendment to the United States Constitution. The judgment of the Court of Appeals is therefore Reversed.

Justice Blackmun

concurring

City of Rome v. United States

https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/110248/

1979-075

I join the Court's opinion but write separately to state my understanding of the effect of the holding in Part IV-B. The Court there affirms, as not clearly erroneous, the District Court's determination that the city of Rome failed to meet its burden of disproving that the 13 disputed annexation had a discriminatory effect. That issue, for me, is close, but I accept the District Court's ruling. The holding, however, *188 does seem to have the anomalous result of leaving the voters residing in those annexed areas within the jurisdiction of Rome's Board of Education, but outside the jurisdiction of its City Commission.[*] As the appellees point out, however, Brief for Appellees 40-42, affirmance of the District Court's holding does not preclude the city from altering this anomaly. It seems significant to me that the District Court adopted the remedial device of conditioning its approval of the annexations on Rome's abandonment of the residency requirement for City Commission elections. It thus denied the city's motion for approval of the annexations "without prejudice to renewal . . . upon the undertaking of suitable action consistent with the views expressed herein." 472 F. Supp. 221, 249 (DC 1979). This remedial device, conditioning the approval of annexations on the elimination of pre-existing discriminatory aspects of a city's electoral system, was developed in City of Petersburg v. United States, 354 F. Supp. 1021 (DC 1972), summarily aff'd, 410 U.S. 962 (1973), and expressly approved by this Court in City of Richmond v. United States, 422 U.S. 358, 369-371 (1975). I entertain some doubt about the District Court's apparent conclusion that the residency requirement for Commission elections, standing alone, would render the postannexation electoral system of Rome one that did not "fairly recogniz[e] the minority's political potential," within the meaning of City of Richmond. Id., at 378. The discriminatory effect of a residency requirement in an at-large election system results from its necessary separation of one contest into a number of individual contests, thereby frustrating minority efforts to utilize effectively single-shot voting. See ante, at 185, n. 21. *189 And in a city the size of Rome, one might reasonably conclude that a requirement that one Commission member reside in each of nine wards would have such an effect. The District Court failed to analyze, however, the impact of the Attorney General's preclearance of Rome's reduction of the number of wards in the city from nine to three. The potential for effective single-shot voting would not be frustrated by a requirement that three commissioners be elected from each of three wards, so long as candidates were not required to run for a particular "numbered post" within each ward. Given the Attorney General's preclearance of the reduction of the number of wards from nine to three, the latter requirement is one that the District Court should have considered in determining whether the presence of a residency requirement would necessarily lead to the conclusion that Rome's postannexation electoral system is one that does not fairly recognize the minority's political potential. I do not dissent from the affirmance of the District Court's holding with respect to the annexations, however, because the appellees have conceded that Rome need not abandon its residency requirement in order to keep the annexed areas within the jurisdiction of the City Commission. Appellees state: "If the City wished to retain both a residency requirement and at-large elections, . . . it could couple its pre-1966 procedures with its subsequent shift to a system of electing three commissioners from each of three wards. (The Attorney General had not objected to the change from nine wards to three larger wards.) When candidates are running concurrently for three unnumbered positions in each of the three wards, without a majority-vote requirement, there can be no head-to-head contest, and single-shot voting by black voters would give them a chance to elect the candidate they supported." Brief for Appellees 41-42. *190 Thus, on the understanding that the Attorney General would not object to the District Court's approval of the annexations insofar as they expand the jurisdiction of the City Commission, if the city either eliminates the residency requirement and returns to a nine ward system, or retains the residency requirement and the three-ward system that has been in effect since 1966, I join in Part IV-B of the Court's opinion. MR.

I join the Court's opinion but write separately to state my understanding of the effect of the holding in Part IV-B. The Court there affirms, as not clearly erroneous, the District Court's determination that the city of Rome failed to meet its burden of disproving that the 13 disputed annexation had a discriminatory effect. That issue, for me, is close, but I accept the District Court's ruling. The holding, however, *188 does seem to have the anomalous result of leaving the voters residing in those annexed areas within the jurisdiction of Rome's Board of Education, but outside the jurisdiction of its City Commission.[*] As the appellees point out, however, Brief for Appellees 40-42, affirmance of the District Court's holding does not preclude the city from altering this anomaly. It seems significant to me that the District Court adopted the remedial device of conditioning its approval of the annexations on Rome's abandonment of the residency requirement for City Commission elections. It thus denied the city's motion for approval of the annexations "without prejudice to renewal upon the undertaking of suitable action consistent with the views expressed herein." This remedial device, conditioning the approval of annexations on the elimination of pre-existing discriminatory aspects of a city's electoral system, was developed in City of summarily aff'd, and expressly approved by this Court in City of I entertain some doubt about the District Court's apparent conclusion that the residency requirement for Commission elections, standing alone, would render the postannexation electoral system of Rome one that did not "fairly recogniz[e] the minority's political potential," within the meaning of City of Richmond. The discriminatory effect of a residency requirement in an at-large election system results from its necessary separation of one contest into a number of individual contests, thereby frustrating minority efforts to utilize effectively single-shot voting. See ante, at 185, n. 21. *189 And in a city the size of Rome, one might reasonably conclude that a requirement that one Commission member reside in each of nine wards would have such an effect. The District Court failed to analyze, however, the impact of the Attorney General's preclearance of Rome's reduction of the number of wards in the city from nine to three. The potential for effective single-shot voting would not be frustrated by a requirement that three commissioners be elected from each of three wards, so long as candidates were not required to run for a particular "numbered post" within each ward. Given the Attorney General's preclearance of the reduction of the number of wards from nine to three, the latter requirement is one that the District Court should have considered in determining whether the presence of a residency requirement would necessarily lead to the conclusion that Rome's postannexation electoral system is one that does not fairly recognize the minority's political potential. I do not dissent from the affirmance of the District Court's holding with respect to the annexations, however, because the appellees have conceded that Rome need not abandon its residency requirement in order to keep the annexed areas within the jurisdiction of the City Commission. Appellees state: "If the City wished to retain both a residency requirement and at-large elections, it could couple its pre-1966 procedures with its subsequent shift to a system of electing three commissioners from each of three wards. (The Attorney General had not objected to the change from nine wards to three larger wards.) When candidates are running concurrently for three unnumbered positions in each of the three wards, without a majority-vote requirement, there can be no head-to-head contest, and single-shot voting by black voters would give them a chance to elect the candidate they supported." Brief for Appellees 41-42. *190 Thus, on the understanding that the Attorney General would not object to the District Court's approval of the annexations insofar as they expand the jurisdiction of the City Commission, if the city either eliminates the residency requirement and returns to a nine ward system, or retains the residency requirement and the three-ward system that has been in effect since 1966, I join in Part IV-B of the Court's opinion. MR.

Justice Brennan

dissenting

Will v. Michigan Dept. of State Police

https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/

https://www.courtlistener.com/api/rest/v3/clusters/112293/

1988-112

Because this case was brought in state court, the Court concedes, the Eleventh Amendment is inapplicable here. See ante, at 63-64. Like the guest who would not leave, *72 however, the Eleventh Amendment lurks everywhere in today's decision and, in truth, determines its outcome. I Section 1 of the Civil Rights Act of 1871, 42 U.S. C. § 1983, renders certain "persons" liable for deprivations of constitutional rights. The question presented is whether the word "person" in this statute includes the States and state officials acting in their official capacities. One might expect that this statutory question would generate a careful and thorough analysis of the language, legislative history, and general background of § 1983. If this is what one expects, however, one will be disappointed by today's decision. For this case is not decided on the basis of our ordinary method of statutory construction; instead, the Court disposes of it by means of various rules of statutory interpretation that it summons to its aid each time the question looks close. Specifically, the Court invokes the following interpretative principles: the word "persons" is ordinarily construed to exclude the sovereign; congressional intent to affect the federal-state balance must be "clear and manifest"; and intent to abrogate States' Eleventh Amendment immunity must appear in the language of the statute itself. The Court apparently believes that each of these rules obviates the need for close analysis of a statute's language and history. Properly applied, however, only the last of these interpretative principles has this effect, and that principle is not pertinent to the case before us. The Court invokes, first, the "often-expressed understanding" that " `in common usage, the term "person" does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.' " Ante, at 64, quoting Wilson v. Omaha Tribe, 442 U.S. 653, 667 (1979). This rule is used both to refute the argument that the language of § 1983 demonstrates an intent that States be included as defendants, ante, at 64, and to overcome the argument *73 based on the Dictionary Act's definition of "person" to include bodies politic and corporate, ante, at 69-70. It is ironic, to say the least, that the Court chooses this interpretive rule in explaining why the Dictionary Act is not decisive, since the rule is relevant only when the word "persons" has no statutory definition. When one considers the origins and content of this interpretive guideline, moreover, one realizes that it is inapplicable here and, even if applied, would defeat rather than support the Court's approach and result. The idea that the word "persons" ordinarily excludes the sovereign can be traced to the "familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words." Dollar Savings Bank v. United States, 19 Wall. 227, 239 (1874). As this passage suggests, however, this interpretive principle applies only to "the enacting sovereign." United States v. California, 297 U.S. 175, 186 (1936). See also Jefferson County Pharmaceutical Assn., Inc. v. Abbott Laboratories, 460 U.S. 150, 161, n. 21 (1983). Furthermore, as explained in United States v. Herron, 20 Wall. 251, 255 (1874), even the principle as applied to the enacting sovereign is not without limitations: "Where an act of Parliament is made for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the king is bound by such act, though not particularly named therein; but where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king is not bound, unless the statute is made to extend to him by express words." It would be difficult to imagine a statute more clearly designed "for the public good," and "to prevent injury and wrong," than § 1983. Even if this interpretive principle were relevant to this case, the Court's invocation of it to the exclusion of careful statutory analysis is in error. As we have made clear, this principle is merely "an aid to consistent construction of statutes of the enacting sovereign when their purpose is in *74 doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated." United States v. California, supra, at 186. Indeed, immediately following the passage quoted by the Court today, ante, at 64, to the effect that statutes using the word "person" are "ordinarily construed to exclude" the sovereign, we stated: "But there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law. ..... "Decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction." United States v. Cooper Corp., 312 U.S. 600, 604-605 (1941). See also Wilson v. Omaha Indian Tribe, supra, at 667 ("There is . . . `no hard and fast rule of exclusion,' United States v. Cooper Corp., [312 U.S. 600,] 604-605 [(1941)]; and much depends on the context, the subject matter, legislative history, and executive interpretation"); Pfizer Inc. v. India, 434 U.S. 308, 315-318 (1978); Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152, 155 (1912); Lewis v. United States, 92 U.S. 618, 622 (1875); Green v. United States, 9 Wall. 655, 658 (1870). The second interpretive principle that the Court invokes comes from cases such as Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16 (1981); South Dakota v. Dole, 483 U.S. 203, 207-208 (1987); and United States v. *75 Bass, 404 U.S. 336, 349 (1971), which require a "clear and manifest" expression of congressional intent to change some aspect of federal-state relations. Ante, at 65. These cases do not, however, permit substitution of an absolutist rule of statutory construction for thorough statutory analysis. Indeed, in each of these decisions the Court undertook a careful and detailed analysis of the statutory language and history under consideration. Rice is a particularly inapposite source for the interpretive method that the Court today employs, since it observes that, according to conventional pre-emption analysis, a "clear and manifest" intent to pre-empt state legislation may appear in the "scheme" or "purpose" of the federal statute. See 331 U.S., at 230. The only principle of statutory construction employed by the Court that would justify a perfunctory and inconclusive analysis of a statute's language and history is one that is irrelevant to this case. This is the notion "that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' " Ante, at 65, quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). As the Court notes, Atascadero was an Eleventh Amendment case; the "constitutional balance" to which Atascadero refers is that struck by the Eleventh Amendment as this Court has come to interpret it. Although the Court apparently wishes it were otherwise, the principle of interpretation that Atascadero announced is unique to cases involving the Eleventh Amendment. Where the Eleventh Amendment applies, the Court has devised a clear-statement principle more robust than its requirement of clarity in any other situation. Indeed, just today, the Court has intimated that this clear-statement principle is not simply a means of discerning congressional intent. See Dellmuth v. Muth, post, at 232 (concluding that one may not rely on a "permissible inference" from a statute's language and structure in finding abrogation of immunity); post, *76 at 238-239 (BRENNAN, J., dissenting); but see Pennsylvania v. Union Gas Co., ante, p. 1. Since this case was brought in state court, however, this strict drafting requirement has no application here. The Eleventh Amendment can hardly be "a consideration," ante, at 67, in a suit to which it does not apply. That this Court has generated a uniquely daunting requirement of clarity in Eleventh Amendment cases explains why Quern v. Jordan, 440 U.S. 332 (1979), did not decide the question before us today. Because only the Eleventh Amendment permits use of this clear-statement principle, the holding of Quern v. Jordan that § 1983 does not abrogate States' Eleventh Amendment immunity tells us nothing about the meaning of the term "person" in § 1983 as a matter of ordinary statutory construction. Quern's conclusion thus does not compel, or even suggest, a particular result today. The singularity of this Court's approach to statutory interpretation in Eleventh Amendment cases also refutes the Court's argument that, given Quern's holding, it would make no sense to construe § 1983 to include States as "persons." See ante, at 66. This is so, the Court suggests, because such a construction would permit suits against States in state but not federal court, even though a major purpose of Congress in enacting § 1983 was to provide a federal forum for litigants who had been deprived of their constitutional rights. See, e. g., Monroe v. Pape, 365 U.S. 167 (1961). In answering the question whether § 1983 provides a federal forum for suits against the States themselves, however, one must apply the clear-statement principle reserved for Eleventh Amendment cases. Since this principle is inapplicable to suits brought in state court, and inapplicable to the question whether States are among those subject to a statute, see Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 287 (1973); Atascadero, supra, at 240, n. 2, the answer to the question whether § 1983 provides a federal forum for suits against the States may be, and most often will *77 be, different from the answer to the kind of question before us today. Since the question whether Congress has provided a federal forum for damages suits against the States is answered by applying a uniquely strict interpretive principle, see supra, at 75, the Court should not pretend that we have, in Quern, answered the question whether Congress intended to provide a federal forum for such suits, and then reason backwards from that "intent" to the conclusion that Congress must not have intended to allow such suits to proceed in state court. In short, the only principle of statutory interpretation that permits the Court to avoid a careful and thorough analysis of § 1983's language and history is the clear-statement principle that this Court has come to apply in Eleventh Amendment cases — a principle that is irrelevant to this state-court action. In my view, a careful and detailed analysis of § 1983 leads to the conclusion that States are "persons" within the meaning of that statute. II Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Although § 1983 itself does not define the term "person," we are not without a statutory definition of this word. "Any analysis of the meaning of the word `person' in § 1983 . . . must begin . . . with the Dictionary Act." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 719 (1978) (REHNQUIST, J., dissenting). Passed just two months before *78 § 1983, and designed to "suppl[y] rules of construction for all legislation," ibid., the Dictionary Act provided: "That in all acts hereafter passed . . . the word `person' may extend and be applied to bodies politic and corporate. . . unless the context shows that such words were intended to be used in a more limited sense . . . ." Act of Feb. 25, 1871, § 2, 16 Stat. 431. In Monell, we held this definition to be not merely allowable but mandatory, requiring that the word "person" be construed to include "bodies politic and corporate" unless the statute under consideration "by its terms called for a deviation from this practice." 436 U.S., at 689-690, n. 53. Thus, we concluded, where nothing in the "context" of a particular statute "call[s] for a restricted interpretation of the word `person,' the language of that [statute] should prima facie be construed to include `bodies politic' among the entities that could be sued." Ibid. Both before and after the time when the Dictionary Act and § 1983 were passed, the phrase "bodies politic and corporate" was understood to include the States. See, e. g., J. Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States of America 185 (11th ed. 1866); W. Shumaker & G. Longsdorf, Cyclopedic Dictionary of Law 104 (1901); Chisholm v. Georgia, 2 Dall. 419, 447 (1793) (Iredell, J.); id., at 468 (Cushing, J.); Cotton v. United States, 11 How. 229, 231 (1851) ("Every sovereign State is of necessity a body politic, or artificial person"); Poindexter v. Greenhow, 114 U.S. 270, 288 (1885); McPherson v. Blacker, 146 U.S. 1, 24 (1892); Heim v. McCall, 239 U.S. 175, 188 (1915). See also United States v. Maurice, 2 Brock. 96, 109 (CC Va. 1823) (Marshall, C. J.) ("The United States is a government, and, consequently, a body politic and corporate"); Van Brocklin v. Tennessee, 117 U.S. 151, 154 (1886) (same). Indeed, the very legislators who passed § 1 referred to States in these terms. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (Sen. Vickers) ("What is a State? Is *79 it not a body politic and corporate?"); id., at 696 (Sen. Edmunds) ("A State is a corporation"). The reason why States are "bodies politic and corporate" is simple: just as a corporation is an entity that can act only through its agents, "[t]he State is a political corporate body, can act only through agents, and can command only by laws." Poindexter v. Greenhow, supra, at 288. See also Black's Law Dictionary 159 (5th ed. 1979) ("[B]ody politic or corporate": "A social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good"). As a "body politic and corporate," a State falls squarely within the Dictionary Act's definition of a "person." While it is certainly true that the phrase "bodies politic and corporate" referred to private and public corporations, see ante, at 69, and n. 9, this fact does not draw into question the conclusion that this phrase also applied to the States. Phrases may, of course, have multiple referents. Indeed, each and every dictionary cited by the Court accords a broader realm — one that comfortably, and in most cases explicitly, includes the sovereign — to this phrase than the Court gives it today. See 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 155 (1879) ("[T]he term body politic is often used in a general way, as meaning the state or the sovereign power, or the city government, without implying any distinct express incorporation"); W. Anderson, A Dictionary of Law 127 (1893) ("[B]ody politic": "The governmental, sovereign power: a city or a State"); Black's Law Dictionary 143 (1891) ("[B]ody politic": "It is often used, in a rather loose way, to designate the state or nation or sovereign power, or the government of a county or municipality, without distinctly connoting any express and individual corporate charter"); 1 A. Burrill, A Law Dictionary and Glossary 212 (2d ed. 1871) ("[B]ody politic": "A body to take in succession, framed by policy"; "[p]articularly *80 applied, in the old books, to a corporation sole"); id., at 383 ("[C]orporation sole" includes the sovereign in England). Because I recognize that both uses of this phrase were deemed valid when § 1983 and the Dictionary Act were passed, the Court accuses me of "confus[ing] [the] precise definition of [this] phrase with its use `in a rather loose way,' " "to refer to the state (as opposed to a State)." Ante, at 70, n. 9, quoting Black, supra, at 143. It had never occurred to me, however, that only "precise" definitions counted as valid ones. Where the question we face is what meaning Congress attached to a particular word or phrase, we usually — and properly — are loath to conclude that Congress meant to use the word or phrase in a hypertechnical sense unless it said so. Nor does the Court's distinction between "the state" and "a State" have any force. The suggestion, I take it, is that the phrase "bodies politic and corporate" refers only to nations rather than to the states within a nation; but then the Court must explain why so many of the sources I have quoted refer to states in addition to nations. In an opinion so utterly devoted to the rights of the States as sovereigns, moreover, it is surprising indeed to find the Court distinguishing between our sovereign States and our sovereign Nation. In deciding what the phrase "bodies politic and corporate" means, furthermore, I do not see the relevance of the meaning of the term "public corporation." See ante, at 69-70, n. 9. That is not the phrase chosen by Congress in the Dictionary Act, and the Court's suggestion that this phrase is coterminous with the phrase "bodies politic and corporate" begs the question whether the latter one includes the States. Nor do I grasp the significance of this Court's decision in United States v. Fox, 94 U.S. 315 (1877), in which the question was whether the State of New York, by including "persons" and "corporations" within the class of those to whom land could be devised, had intended to authorize devises to the United States. Ante, at 69-70, n. 9. Noting that "[t]he question is to be determined by the laws of [New York]," the *81 Court held that it would require "an express definition" to hold that the word "persons" included the Federal Government, and that under state law the term "corporations" applied only to corporations created under the laws of New York. 94 U.S., at 320-321. The pertinence of these state-law questions to the issue before us today escapes me. Not only do we confront an entirely different, federal statute, but we also have an express statement, in the Dictionary Act, that the word "person" in § 1 includes "bodies politic and corporate." See also Pfizer Inc. v. India, 434 U. S., at 315, n. 15. The relevance of the fact that § 2 of the Civil Rights Act of 1866, 14 Stat. 27, — the model for § 1 of the 1871 Act — was passed before the Dictionary Act, see ante, at 69, similarly eludes me. Congress chose to use the word "person" in the 1871 Act even after it had passed the Dictionary Act, presumptively including "bodies politic and corporate" within the category of "persons." Its decision to do so — and its failure to indicate in the 1871 Act that the Dictionary Act's presumption was not to apply — demonstrate that Congress did indeed intend "persons" to include bodies politic and corporate. In addition, the Dictionary Act's definition of "person" by no means dropped from the sky. Many of the authorities cited above predate both the Dictionary Act and the 1866 Act, indicating that the word "persons" in 1866 ordinarily would have been thought to include "bodies politic and corporate," with or without the Dictionary Act. This last point helps to explain why it is a matter of small importance that the Dictionary Act's definition of "person" as including bodies politic and corporate was retroactively withdrawn when the federal statutes were revised in 1874. See T. Durant, Report to Joint Committee on Revision of Laws 2 (1873). Only two months after presumptively designating bodies politic and corporate as "persons," Congress chose the word "person" for § 1 of the Civil Rights Act. For the purpose of determining Congress' intent in using this *82 term, it cannot be decisive that, three years later, it withdrew this presumption. In fact, both the majority and dissent in Monell emphasized the 1871 version of the Dictionary Act, but neither saw fit even to mention the 1874 revision of this statute. 436 U.S., at 688-689, and nn. 51, 53 (opinion for the Court); id., at 719 (REHNQUIST, J., dissenting). Even in cases, moreover, where no statutory definition of the word "persons" is available, we have not hesitated to include bodies politic and corporate within that category. See Stanley v. Schwalby, 147 U.S. 508, 517 (1893) ("[T]he word `person' in the statute would include [the States] as a body politic and corporate"); Ohio v. Helvering, 292 U.S. 360, 370 (1934); United States v. Shirey, 359 U.S. 255, 257, n. 2 (1959). Thus, the question before us is whether the presumption that the word "person" in § 1 of the Civil Rights Act of 1871 included bodies politic and corporate — and hence the States — is overcome by anything in the statute's language and history. Certainly nothing in the statutory language overrides this presumption. The statute is explicitly directed at action taken "under color of" state law, and thus supports rather than refutes the idea that the "persons" mentioned in the statute include the States. Indeed, for almost a century — until Monroe v. Pape, 365 U.S. 167 (1961) — it was unclear whether the statute applied at all to action not authorized by the State, and the enduring significance of the first cases construing the Fourteenth Amendment, pursuant to which § 1 was passed, lies in their conclusion that the prohibitions of this Amendment do not reach private action. See Civil Rights Cases, 109 U.S. 3 (1883). In such a setting, one cannot reasonably deny the significance of § 1983's explicit focus on state action. Unimpressed by such arguments, the Court simply asserts that reading "States" where the statute mentions "person" would be "decidedly awkward." Ante, at 64. The Court does not describe the awkwardness that it perceives, but I take it that its objection is that the under-color-of-law *83 requirement would be redundant if States were included in the statute because States necessarily act under color of state law. But § 1983 extends as well to natural persons, who do not necessarily so act; in order to ensure that they would be liable only when they did so, the statute needed the under-color-of-law requirement. The only way to remove the redundancy that the Court sees would have been to eliminate the catchall phrase "person" altogether, and separately describe each category of possible defendants and the circumstances under which they might be liable. I cannot think of a situation not involving the Eleventh Amendment, however, in which we have imposed such an unforgiving drafting requirement on Congress. Taking the example closest to this case, we might have observed in Monell that § 1983 was clumsily written if it included municipalities, since these, too, may act only under color of state authority. Nevertheless, we held there that the statute does apply to municipalities. 436 U.S., at 690. Similarly, we have construed the statutory term "white persons" to include " `corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,' " see Wilson v. Omaha Tribe, 442 U. S., at 666, quoting 1 U.S. C. § 1, despite the evident awkwardness in doing so. Indeed, virtually every time we construe the word "person" to include corporate or other artificial entities that are not individual, flesh-and-blood persons, some awkwardness results. But given cases like Monell and Wilson, it is difficult to understand why mere linguistic awkwardness should control where there is good reason to accept the "awkward" reading of a statute. The legislative history and background of the statute confirm that the presumption created by the Dictionary Act was not overridden in § 1 of the 1871 Act, and that, even without such a presumption, it is plain that "person" in the 1871 Act must include the States. I discussed in detail the legislative history of this statute in my opinion concurring in the judgment *84 in Quern v. Jordan, 440 U. S., at 357-365, and I shall not cover that ground again here. Suffice it to say that, in my view, the legislative history of this provision, though spare, demonstrates that Congress recognized and accepted the fact that the statute was directed at the States themselves. One need not believe that the statute satisfies this Court's heightened clear-statement principle, reserved for Eleventh Amendment cases, in order to conclude that the language and legislative history of § 1983 show that the word "person" must include the States. As to the more general historical background of § 1, we too easily forget, I think, the circumstances existing in this country when the early civil rights statutes were passed. "[V]iewed against the events and passions of the time," United States v. Price, 383 U.S. 787, 803 (1966), I have little doubt that § 1 of the Civil Rights Act of 1871 included States as "persons." The following brief description of the Reconstruction period is illuminating: "The Civil War had ended in April 1865. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 `unreconstructed' States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress' requirements in 1868, the other four by 1870. "For a few years `radical' Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 1866 and a similar organization appeared with the romantic title of the Knights of the *85 White Camellia. In 1868 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls. The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man. "Within the Congress pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 1865, Congress, on April 9, 1866, enacted the Civil Rights Act of 1866 . . . . On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified in July 1868. In February 1869 the Fifteenth Amendment was proposed, and it was ratified in February 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted." Id., at 803-805 (footnotes omitted). This was a Congress in the midst of altering the " `balance between the States and the Federal Government.' " Ante, at 65, quoting Atascadero State Hospital v. Scanlon, 473 U. S., at 242. It was fighting to save the Union, and in doing so, it transformed our federal system. It is difficult, therefore, to believe that this same Congress did not intend to include States among those who might be liable under § 1983 for the very deprivations that were threatening this Nation at that time. III To describe the breadth of the Court's holding is to demonstrate its unwisdom. If States are not "persons" within the meaning of § 1983, then they may not be sued under that statute regardless of whether they have consented to suit. Even if, in other words, a State formally and explicitly consented to suits against it in federal or state court, no § 1983 plaintiff could proceed against it because States are not within the statute's category of possible defendants. *86 This is indeed an exceptional holding. Not only does it depart from our suggestion in Alabama v. Pugh, 438 U.S. 781, 782 (1978), that a State could be a defendant under § 1983 if it consented to suit, see also Quern v. Jordan, supra, at 340, but it also renders ineffective the choices some States have made to permit such suits against them. See, e. g., Della Grotta v. Rhode Island, 781 F.2d 343 (CA1 1986). I do not understand what purpose is served, what principle of federalism or comity is promoted, by refusing to give force to a State's explicit consent to suit. The Court appears to be driven to this peculiar result in part by its view that "in enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law." Ante, at 67. But the question whether States are "persons" under § 1983 is separate and distinct from the question whether they may assert a defense of common-law sovereign immunity. In our prior decisions involving common-law immunities, we have not held that the existence of an immunity defense excluded the relevant state actor from the category of "persons" liable under § 1983, see, e. g., Forrester v. White, 484 U.S. 219 (1988), and it is a mistake to do so today. Such an approach entrenches the effect of common-law immunity even where the immunity itself has been waived. For my part, I would reverse the judgment below and remand for resolution of the question whether Michigan would assert common-law sovereign immunity in defense to this suit and, if so, whether that assertion of immunity would preclude the suit. Given the suggestion in the court below that Michigan enjoys no common-law immunity for violations of its own Constitution, Smith v. Department of Public Health, 428 Mich. 540, 641-642, 410 N.W.2d 749, 793-794 (1987) (Boyle, J., concurring), there is certainly a possibility that that court would hold that the State also lacks immunity against § 1983 suits for violations of the Federal Constitution. *87 Moreover, even if that court decided that the State's waiver of immunity did not apply to § 1983 suits, there is a substantial question whether Michigan could so discriminate between virtually identical causes of action only on the ground that one was a state suit and the other a federal one. Cf. Testa v. Katt, 330 U.S. 386 (1947); Martinez v. California, 444 U.S. 277, 283, n. 7 (1980). Finally, even if both of these questions were resolved in favor of an immunity defense, there would remain the question whether it would be reasonable to attribute to Congress an intent to allow States to decide for themselves whether to take cognizance of § 1983 suits brought against them. Cf. Martinez, supra, at 284, and n. 8; Owen v. City of Independence, 445 U.S. 622, 647-648 (1980). Because the court below disposed of the case on the ground that States were not "persons" within the meaning of § 1983, it did not pass upon these difficult and important questions. I therefore would remand this case to the state court to resolve these questions in the first instance.

Because this case was brought in state court, the Court concedes, the Eleventh Amendment is inapplicable here. See ante, at 63-64. Like the guest who would not leave, *72 however, the Eleventh Amendment lurks everywhere in today's decision and, in truth, determines its outcome. I Section 1 of the Civil Rights Act of 1871, 42 U.S. C. 1983, renders certain "persons" liable for deprivations of constitutional rights. The question presented is whether the word "person" in this statute includes the States and state officials acting in their official capacities. One might expect that this statutory question would generate a careful and thorough analysis of the language, legislative history, and general background of 1983. If this is what one expects, however, one will be disappointed by today's decision. For this case is not decided on the basis of our ordinary method of statutory construction; instead, the Court disposes of it by means of various rules of statutory interpretation that it summons to its aid each time the question looks close. Specifically, the Court invokes the following interpretative principles: the word "persons" is ordinarily construed to exclude the sovereign; congressional intent to affect the federal-state balance must be "clear and manifest"; and intent to abrogate States' Eleventh Amendment immunity must appear in the language of the statute itself. The Court apparently believes that each of these rules obviates the need for close analysis of a statute's language and history. Properly applied, however, only the last of these interpretative principles has this effect, and that principle is not pertinent to the case before us. The Court invokes, first, the "often-expressed understanding" that " `in common usage, the term "person" does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.' " Ante, at 64, quoting This rule is used both to refute the argument that the language of 1983 demonstrates an intent that States be included as defendants, ante, at 64, and to overcome the argument *73 based on the Dictionary Act's definition of "person" to include bodies politic and corporate, ante, at 69-70. It is ironic, to say the least, that the Court chooses this interpretive rule in explaining why the Dictionary Act is not decisive, since the rule is relevant only when the word "persons" has no statutory definition. When one considers the origins and content of this interpretive guideline, moreover, one realizes that it is inapplicable here and, even if applied, would defeat rather than support the Court's approach and result. The idea that the word "persons" ordinarily excludes the sovereign can be traced to the "familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words." Dollar Savings As this passage suggests, however, this interpretive principle applies only to "the enacting sovereign." United See also Jefferson County Pharmaceutical Assn., Furthermore, as explained in United even the principle as applied to the enacting sovereign is not without limitations: "Where an act of Parliament is made for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the king is bound by such act, though not particularly named therein; but where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king is not bound, unless the statute is made to extend to him by express words." It would be difficult to imagine a statute more clearly designed "for the public good," and "to prevent injury and wrong," than 1983. Even if this interpretive principle were relevant to this case, the Court's invocation of it to the exclusion of careful statutory analysis is in error. As we have made clear, this principle is merely "an aid to consistent construction of statutes of the enacting sovereign when their purpose is in *74 doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated." United at Indeed, immediately following the passage quoted by the Court today, ante, at 64, to the effect that statutes using the word "person" are "ordinarily construed to exclude" the sovereign, we stated: "But there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law. "Decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction." United See also Wilson v. Omaha n at ]; and much depends on the context, the subject matter, legislative history, and executive interpretation"); Pfizer ; Guarantee Title & Trust ; ; The second interpretive principle that the Court invokes comes from cases such as ; Pennhurst State School and ; South ; and United which require a "clear and manifest" expression of congressional intent to change some aspect of federal-state relations. Ante, at 65. These cases do not, however, permit substitution of an absolutist rule of statutory construction for thorough statutory analysis. Indeed, in each of these decisions the Court undertook a careful and detailed analysis of the statutory language and history under consideration. Rice is a particularly inapposite source for the interpretive method that the Court today employs, since it observes that, according to conventional pre-emption analysis, a "clear and manifest" intent to pre-empt state legislation may appear in the "scheme" or "purpose" of the federal statute. See 331 U.S., at The only principle of statutory construction employed by the Court that would justify a perfunctory and inconclusive analysis of a statute's language and history is one that is irrelevant to this case. This is the notion "that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' " Ante, at 65, quoting State As the Court notes, was an Eleventh Amendment case; the "constitutional balance" to which refers is that struck by the Eleventh Amendment as this Court has come to interpret it. Although the Court apparently wishes it were otherwise, the principle of interpretation that announced is unique to cases involving the Eleventh Amendment. Where the Eleventh Amendment applies, the Court has devised a clear-statement principle more robust than its requirement of clarity in any other situation. Indeed, just today, the Court has intimated that this clear-statement principle is not simply a means of discerning congressional intent. See Dellmuth v. Muth, post, at 232 (concluding that one may not rely on a "permissible inference" from a statute's language and structure in finding abrogation of immunity); post, *76 at 238- (BRENNAN, J., dissenting); but see Pennsylvania v. Union Gas Co., ante, p. 1. Since this case was brought in state court, however, this strict drafting requirement has no application here. The Eleventh Amendment can hardly be "a consideration," ante, at 67, in a suit to which it does not apply. That this Court has generated a uniquely daunting requirement of clarity in Eleventh Amendment cases explains why did not decide the question before us today. Because only the Eleventh Amendment permits use of this clear-statement principle, the holding of that 1983 does not abrogate States' Eleventh Amendment immunity tells us nothing about the meaning of the term "person" in 1983 as a matter of ordinary statutory construction. Quern's conclusion thus does not compel, or even suggest, a particular result today. The singularity of this Court's approach to statutory interpretation in Eleventh Amendment cases also refutes the Court's argument that, given Quern's holding, it would make no sense to construe 1983 to include States as "persons." See ante, at 66. This is so, the Court suggests, because such a construction would permit suits against States in state but not federal court, even though a major purpose of Congress in enacting 1983 was to provide a federal forum for litigants who had been deprived of their constitutional rights. See, e. g., 365 U.S. 7 In answering the question whether 1983 provides a federal forum for suits against the States themselves, however, one must apply the clear-statement principle reserved for Eleventh Amendment cases. Since this principle is inapplicable to suits brought in state court, and inapplicable to the question whether States are among those subject to a statute, see ; the answer to the question whether 1983 provides a federal forum for suits against the States may be, and most often will *77 be, different from the answer to the kind of question before us today. Since the question whether Congress has provided a federal forum for damages suits against the States is answered by applying a uniquely strict interpretive principle, see the Court should not pretend that we have, in Quern, answered the question whether Congress intended to provide a federal forum for such suits, and then reason backwards from that "intent" to the conclusion that Congress must not have intended to allow such suits to proceed in state court. In short, the only principle of statutory interpretation that permits the Court to avoid a careful and thorough analysis of 1983's language and history is the clear-statement principle that this Court has come to apply in Eleventh Amendment cases — a principle that is irrelevant to this state-court action. In my view, a careful and detailed analysis of 1983 leads to the conclusion that States are "persons" within the meaning of that statute. II Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Although 1983 itself does not define the term "person," we are not without a statutory definition of this word. "Any analysis of the meaning of the word `person' in 1983 must begin with the Dictionary Act." 436 U.S. Passed just two months before *78 1983, and designed to "suppl[y] rules of construction for all legislation," ib the Dictionary Act provided: "That in all acts hereafter passed the word `person' may extend and be applied to bodies politic and corporate. unless the context shows that such words were intended to be used in a more limited sense" Act of Feb. 25, 1871, 2, Stat. 431. In Monell, we held this definition to be not merely allowable but mandatory, requiring that the word "person" be construed to include "bodies politic and corporate" unless the statute under consideration "by its terms called for a deviation from this practice." -690, n. 53. Thus, we concluded, where nothing in the "context" of a particular statute "call[s] for a restricted interpretation of the word `person,' the language of that [statute] should prima facie be construed to include `bodies politic' among the entities that could be sued." Both before and after the time when the Dictionary Act and 1983 were passed, the phrase "bodies politic and corporate" was understood to include the States. See, e. g., J. Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States of America 185 (11th ed. 6); W. Shumaker & G. Longsdorf, Cyclopedic Dictionary of Law 104 (1901); ; ; ; ; ; U.S. 175, See also United ("The United States is a government, and, consequently, a body politic and corporate"); Van (6) Indeed, the very legislators who passed 1 referred to States in these terms. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (Sen. Vickers) ("What is a State? Is *79 it not a body politic and corporate?"); ("A State is a corporation"). The reason why States are "bodies politic and corporate" is simple: just as a corporation is an entity that can act only through its agents, "[t]he State is a political corporate body, can act only through agents, and can command only by laws." at See also 's Law Dictionary 159 ("[B]ody politic or corporate": "A social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good"). As a "body politic and corporate," a State falls squarely within the Dictionary Act's definition of a "person." While it is certainly true that the phrase "bodies politic and corporate" referred to private and public corporations, see ante, at 69, and n. 9, this fact does not draw into question the conclusion that this phrase also applied to the States. Phrases may, of course, have multiple referents. Indeed, each and every dictionary cited by the Court accords a broader realm — one that comfortably, and in most cases explicitly, includes the sovereign — to this phrase than the Court gives it today. See 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence (1879) ("[T]he term body politic is often used in a general way, as meaning the state or the sovereign power, or the city government, without implying any distinct express incorporation"); W. Anderson, A Dictionary of Law 127 ("[B]ody politic": "The governmental, sovereign power: a city or a State"); 's Law Dictionary 143 (1891) ("[B]ody politic": "It is often used, in a rather loose way, to designate the state or nation or sovereign power, or the government of a county or municipality, without distinctly connoting any express and individual corporate charter"); 1 A. Burrill, A Law Dictionary and Glossary 212 (2d ed. 1871) ("[B]ody politic": "A body to take in succession, framed by policy"; "[p]articularly *80 applied, in the old books, to a corporation sole"); Because I recognize that both uses of this phrase were deemed valid when 1983 and the Dictionary Act were passed, the Court accuses me of "confus[ing] [the] precise definition of [this] phrase with its use `in a rather loose way,' " "to refer to the state (as opposed to a State)." Ante, at 70, n. 9, quoting It had never occurred to me, however, that only "precise" definitions counted as valid ones. Where the question we face is what meaning Congress attached to a particular word or phrase, we usually — and properly — are loath to conclude that Congress meant to use the word or phrase in a hypertechnical sense unless it said so. Nor does the Court's distinction between "the state" and "a State" have any force. The suggestion, I take it, is that the phrase "bodies politic and corporate" refers only to nations rather than to the states within a nation; but then the Court must explain why so many of the sources I have quoted refer to states in addition to nations. In an opinion so utterly devoted to the rights of the States as sovereigns, moreover, it is surprising indeed to find the Court distinguishing between our sovereign States and our sovereign Nation. In deciding what the phrase "bodies politic and corporate" means, furthermore, I do not see the relevance of the meaning of the term "public corporation." See ante, at 69-70, n. 9. That is not the phrase chosen by Congress in the Dictionary Act, and the Court's suggestion that this phrase is coterminous with the phrase "bodies politic and corporate" begs the question whether the latter one includes the States. Nor do I grasp the significance of this Court's decision in United in which the question was whether the State of New York, by including "persons" and "corporations" within the class of those to whom land could be devised, had intended to authorize devises to the United States. Ante, at 69-70, n. 9. Noting that "[t]he question is to be determined by the laws of [New York]," the *81 Court held that it would require "an express definition" to hold that the word "persons" included the Federal Government, and that under state law the term "corporations" applied only to corporations created under the laws of New York. -321. The pertinence of these state-law questions to the issue before us today escapes me. Not only do we confront an entirely different, federal statute, but we also have an express statement, in the Dictionary Act, that the word "person" in 1 includes "bodies politic and corporate." See also Pfizer n. 15. The relevance of the fact that 2 of the Civil Rights Act of 6, — the model for 1 of the 1871 Act — was passed before the Dictionary Act, see ante, at 69, similarly eludes me. Congress chose to use the word "person" in the 1871 Act even after it had passed the Dictionary Act, presumptively including "bodies politic and corporate" within the category of "persons." Its decision to do so — and its failure to indicate in the 1871 Act that the Dictionary Act's presumption was not to apply — demonstrate that Congress did indeed intend "persons" to include bodies politic and corporate. In addition, the Dictionary Act's definition of "person" by no means dropped from the sky. Many of the authorities cited above predate both the Dictionary Act and the 6 Act, indicating that the word "persons" in 6 ordinarily would have been thought to include "bodies politic and corporate," with or without the Dictionary Act. This last point helps to explain why it is a matter of small importance that the Dictionary Act's definition of "person" as including bodies politic and corporate was retroactively withdrawn when the federal statutes were revised in 1874. See T. Durant, Report to Joint Committee on Revision of Laws 2 (1873). Only two months after presumptively designating bodies politic and corporate as "persons," Congress chose the word "person" for 1 of the Civil Rights Act. For the purpose of determining Congress' intent in using this *82 term, it cannot be decisive that, three years later, it withdrew this presumption. In fact, both the majority and dissent in Monell emphasized the 1871 version of the Dictionary Act, but neither saw fit even to mention the 1874 revision of this statute. -689, and nn. 51, 53 (opinion for the Court); at Even in cases, moreover, where no statutory definition of the word "persons" is available, we have not hesitated to include bodies politic and corporate within that category. See ; ; United 359 U.S. Thus, the question before us is whether the presumption that the word "person" in 1 of the Civil Rights Act of 1871 included bodies politic and corporate — and hence the States — is overcome by anything in the statute's language and history. Certainly nothing in the statutory language overrides this presumption. The statute is explicitly directed at action taken "under color of" state law, and thus supports rather than refutes the idea that the "persons" mentioned in the statute include the States. Indeed, for almost a century — until 365 U.S. 7 — it was unclear whether the statute applied at all to action not authorized by the State, and the enduring significance of the first cases construing the Fourteenth Amendment, pursuant to which 1 was passed, lies in their conclusion that the prohibitions of this Amendment do not reach private action. See Civil Rights Cases, U.S. 3 (3). In such a setting, one cannot reasonably deny the significance of 1983's explicit focus on state action. Unimpressed by such arguments, the Court simply asserts that reading "States" where the statute mentions "person" would be "decidedly awkward." Ante, at 64. The Court does not describe the awkwardness that it perceives, but I take it that its objection is that the under-color-of-law *83 requirement would be redundant if States were included in the statute because States necessarily act under color of state law. But 1983 extends as well to natural persons, who do not necessarily so act; in order to ensure that they would be liable only when they did so, the statute needed the under-color-of-law requirement. The only way to remove the redundancy that the Court sees would have been to eliminate the catchall phrase "person" altogether, and separately describe each category of possible defendants and the circumstances under which they might be liable. I cannot think of a situation not involving the Eleventh Amendment, however, in which we have imposed such an unforgiving drafting requirement on Congress. Taking the example closest to this case, we might have observed in Monell that 1983 was clumsily written if it included municipalities, since these, too, may act only under color of state authority. Nevertheless, we held there that the statute does apply to Similarly, we have construed the statutory term "white persons" to include " `corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,' " see quoting 1 U.S. C. 1, despite the evident awkwardness in doing so. Indeed, virtually every time we construe the word "person" to include corporate or other artificial entities that are not individual, flesh-and-blood persons, some awkwardness results. But given cases like Monell and Wilson, it is difficult to understand why mere linguistic awkwardness should control where there is good reason to accept the "awkward" reading of a statute. The legislative history and background of the statute confirm that the presumption created by the Dictionary Act was not overridden in 1 of the 1871 Act, and that, even without such a presumption, it is plain that "person" in the 1871 Act must include the States. I discussed in detail the legislative history of this statute in my opinion concurring in the judgment *84 in -365, and I shall not cover that ground again here. Suffice it to say that, in my view, the legislative history of this provision, though spare, demonstrates that Congress recognized and accepted the fact that the statute was directed at the States themselves. One need not believe that the statute satisfies this Court's heightened clear-statement principle, reserved for Eleventh Amendment cases, in order to conclude that the language and legislative history of 1983 show that the word "person" must include the States. As to the more general historical background of 1, we too easily forget, I think, the circumstances existing in this country when the early civil rights statutes were passed. "[V]iewed against the events and passions of the time," United I have little doubt that 1 of the Civil Rights Act of 1871 included States as "persons." The following brief description of the Reconstruction period is illuminating: "The Civil War had ended in April 5. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 `unreconstructed' States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 8. Six of the 10 States fulfilled Congress' requirements in 8, the other four by 1870. "For a few years `radical' Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 6 and a similar organization appeared with the romantic title of the Knights of the *85 White Camellia. In 8 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls. The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man. "Within the Congress pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 5, Congress, on April 9, 6, enacted the Civil Rights Act of 6 On June 13, 6, the Fourteenth Amendment was proposed, and it was ratified in July 8. In February 9 the Fifteenth Amendment was proposed, and it was ratified in February 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted." at -805 This was a Congress in the midst of altering the " `balance between the States and the Federal Government.' " Ante, at 65, quoting State 473 U. S., at It was fighting to save the Union, and in doing so, it transformed our federal system. It is difficult, therefore, to believe that this same Congress did not intend to include States among those who might be liable under 1983 for the very deprivations that were threatening this Nation at that time. III To describe the breadth of the Court's holding is to demonstrate its unwisdom. If States are not "persons" within the meaning of 1983, then they may not be sued under that statute regardless of whether they have consented to suit. Even if, in other words, a State formally and explicitly consented to suits against it in federal or state court, no 1983 plaintiff could proceed against it because States are not within the statute's category of possible defendants. *86 This is indeed an exceptional holding. Not only does it depart from our suggestion in that a State could be a defendant under 1983 if it consented to suit, see also but it also renders ineffective the choices some States have made to permit such suits against them. See, e. g., Della I do not understand what purpose is served, what principle of federalism or comity is promoted, by refusing to give force to a State's explicit consent to suit. The Court appears to be driven to this peculiar result in part by its view that "in enacting 1983, Congress did not intend to override well-established immunities or defenses under the common law." Ante, at 67. But the question whether States are "persons" under 1983 is separate and distinct from the question whether they may assert a defense of common-law sovereign immunity. In our prior decisions involving common-law immunities, we have not held that the existence of an immunity defense excluded the relevant state actor from the category of "persons" liable under 1983, see, e. g., and it is a mistake to do so today. Such an approach entrenches the effect of common-law immunity even where the immunity itself has been waived. For my part, I would reverse the judgment below and remand for resolution of the question whether Michigan would assert common-law sovereign immunity in defense to this suit and, if so, whether that assertion of immunity would preclude the suit. Given the suggestion in the court below that Michigan enjoys no common-law immunity for violations of its own Constitution, there is certainly a possibility that that court would hold that the State also lacks immunity against 1983 suits for violations of the Federal Constitution. *87 Moreover, even if that court decided that the State's waiver of immunity did not apply to 1983 suits, there is a substantial question whether Michigan could so discriminate between virtually identical causes of action only on the ground that one was a state suit and the other a federal one. Cf. ; v. Finally, even if both of these questions were resolved in favor of an immunity defense, there would remain the question whether it would be reasonable to attribute to Congress an intent to allow States to decide for themselves whether to take cognizance of 1983 suits brought against them. Cf. and n. 8; 445 U.S. Because the court below disposed of the case on the ground that States were not "persons" within the meaning of 1983, it did not pass upon these difficult and important questions. I therefore would remand this case to the state court to resolve these questions in the first instance.

Justice Ginsburg

second_dissenting

Gustafson v. Alloyd Co.

https://www.courtlistener.com/opinion/117902/gustafson-v-alloyd-co/

https://www.courtlistener.com/api/rest/v3/clusters/117902/

1994-028

A seller's misrepresentation made "by means of a prospectus or oral communication" is actionable under § 12(2) of the Securities Act of 1933, 15 U.S. C. § 77l (2). To limit the scope of this civil liability provision, the Court maintains that a communication qualifies as a prospectus only if made during a public offering.[1] Communications during either secondary trading or a private placement are not "prospectuses," the Court declares, and thus are not covered by § 12(2). As Justice Thomas persuasively demonstrates, the statute's language does not support the Court's reading. Section 12(2) contains no terms expressly confining the provision to public offerings, and the statutory definition of "prospectus"—"any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," § 2(10), 15 U.S. C. § 77b(10)—is capacious. The Court presents impressive policy reasons for its construction, but drafting history and the longstanding scholarly and judicial understanding of § 12(2) caution against judicial resistance to the statute's defining text. I would leave any alteration to Congress. *597 I To construe a legislatively defined term, courts usually start with the defining section. Section 2(10) defines prospectus capaciously as "any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," 15 U.S. C. § 77b(10). The items listed in the defining provision, notably "letters" and "communications," are common in private and secondary sales, as well as in public offerings. The § 2(10) definition thus does not confine the § 12(2) term "prospectus" to public offerings. The Court bypasses § 2(10), and the solid support it gives the Court of Appeals' disposition. Instead of beginning at the beginning, by first attending to the definition section, the Court starts with § 10, 15 U.S. C. § 77j, a substantive provision. See ante, at 568-569. The Court correctly observes that the term "prospectus" has a circumscribed meaning in that context. A prospectus within the contemplation of § 10 is a formal document, typically a document composing part of a registration statement; a § 10 prospectus, all agree, appears only in public offerings. The Court then proceeds backward; it reads into the literally and logically prior definition section, § 2(10), the meaning "prospectus" has in § 10. To justify its backward reading—proceeding from § 10 to § 2(10) and not the other way round—the Court states that it "cannot accept the conclusion that [the operative word `prospectus'] means one thing in one section of the Act and something quite different in another." See ante, at 573. Our decisions, however, constantly recognize that "a characterization fitting in certain contexts may be unsuitable in others." Nations Bank of N. C., N. A. v. Variable Annuity Life Ins. Co., ante, at 262. In Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427 (1932), we held that the word "trade" has a more encompassing meaning in *598 § 3 than in § 1 of the Sherman Act, see id., at 433-435, and explained: "Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning. . . . But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent. . . . "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." Id., at 433. See also Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against."). According "prospectus" discrete meanings in § 10 and § 12(2) is consistent with Congress' specific instruction in § 2 that definitions apply "unless the context otherwise requires," 15 U.S. C. § 77b. As the Court of Appeals construed the Act, § 2(10)'s definition of "prospectus" governs § 12(2), which accommodates without strain the definition's broad reach; by contrast, the specific context of § 10 requires a correspondingly specific reading of "prospectus." Indeed, in the Investment Company Act of 1940, Congress explicitly recognized that the Securities Act uses "prospectus" in two different senses—one in § 10, and another in the rest of the Act: *599 "`Prospectus,' as used in [§ 22 of the Investment Company Act], means a written prospectus intended to meet the requirements of section 10(a) of the Securities Act of 1933 . . .and currently in use. As used elsewhere, `prospectus' means a prospectus as defined in the Securities Act of 1933." § 2(31), 54 Stat. 794, as amended, 15 U.S. C. § 80a-2(31).[2] II Most provisions of the Securities Act govern only public offerings, and the legislative history pertaining to the Act as a whole shares this orientation. See ante, at 580 (citing H. R. Rep. No. 85, 73d Cong., 1st Sess., 5 (1933)). Section 17(a) of the Act, 15 U.S. C. § 77q(a), however, is not limited to public offerings; that enforcement provision, this Court has recognized, also covers secondary trading. See United States v. Naftalin, 441 U.S. 768 (1979). The drafting history is at least consistent with the conclusion that § 12(2), like § 17(a), is not limited to public offerings. The drafters of the Securities Act modeled this federal legislation on the British Companies Act, 19 & 20 Geo. 5, ch. 23 (1929). See Landis, The Legislative History of the Securities Act of 1933, 28 Geo. Wash. L. Rev. 29, 34 (1959) (Landis and the other drafters "determined to take as the base of [their] work the English Companies Act"); see also SEC v. Ralston Purina Co., 346 U.S. 119, 123 (1953) (characterizing the Companies Act as a "statutory anteceden[t]" of federal securities laws). The Companies Act defined "prospectus" as "any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company," 19 & 20 Geo. 5, ch. 23, § 380(1) (1929) (emphasis added). Though the drafters of the Securities Act borrowed the first four *600 terms of this definition, they did not import from the British legislation the language limiting prospectuses to communications "offering [securities] to the public." This conspicuous omission suggests that the drafters intended the defined term "prospectus" to reach beyond communications used in public offerings.[3] The House Conference Report, which explains the Act in its final form, describes § 12(2) in broad terms, and nowhere suggests that the provision is limited to public offerings: "The House bill (sec. 12) imposes civil liability for using the mails or the facilities of interstate commerce to sell securities (including securities exempt, under section 3, from other provisions of the bill) by means of representations which are untrue or are misleading by reason of omissions of material facts." H. R. Conf. Rep. No. 152, 73d Cong., 1st Sess., 26-27 (1933) (emphasis added). Nor does the Report mention the word "prospectus," even though one would expect that word to figure prominently if it were the significant limitation the Court describes. See also Rapp, The Proper Role of Securities Act Section 12(2) as an After market Remedy for Disclosure Violations, 47 Bus. Law. 711, 719-724 (1992) (offering detailed analysis of legislative history).[4] *601 Commentators writing shortly after passage of the Act understood § 12(2) to cover resales and private sales, as well as public offerings. Felix Frankfurter, organizer of the team that drafted the statute, firmly stated this view. See Frankfurter, The Federal Securities Act: II, 8 Fortune 53, 108 (1933) (Act "seeks to terminate the facilities of the mails and of interstate commerce for dishonest or unfair dealings in the sale of all private or foreign government securities, new or old ") (emphasis added). William O. Douglas expressed the same understanding. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171, 183 (1933) (noting that, except for transactions involving securities exempt under § 3(a)(2), 15 U.S. C. § 77c(a)(2), no securities or transactions are exempt from § 12(2)). Most subsequent commentators have agreed that § 12(2), like § 17(a), is not confined to public offerings. See, e. g., H. Bloomenthal, Securities Law Handbook § 14.05, pp. 14-13, 14-38 (1991); 2 A. Bromberg & L. Lowenfels, Securities Fraud and Commodities Fraud § 5.2(600) (1993); 1 T. Hazen, Law of Securities Regulation § 7.5, p. 318 (2d ed. 1990); 17A J. Hicks, Civil Liabilities: Enforcement and Litigation under the 1933 Act § 6.01[3], pp. 6-12 to 6-39 (1994); 9 L. Loss & J. Seligman, Securities Regulation 4217-4222 (3d ed. 1992); Maynard, Section 12(2) of the Securities Act of 1933: A *602 Remedy for Fraudulent Post distribution Trading?, 20 Sec. Reg. L. J. 152 (1992); Rapp, supra, at 711; Comment, Applying Section 12(2) of the 1933 Securities Act to the After market, 57 U. Chi. L. Rev. 955 (1990). But see Weiss, The Courts Have It Right: Securities Act Section 12(2) Applies Only to Public Offerings, 48 Bus. Law. 1 (1992). While Courts of Appeals have divided on § 12(2)'s application to secondary transactions,[5] every Court of Appeals to consider the issue has ruled that private placements are subject to § 12(2). See Metromedia Co. v. Fugazy, 983 F.2d 350, 360-361 (CA2 1992), cert. denied, 508 U.S. 952 (1993); Haralson v. E. F. Hutton Group, Inc., 919 F.2d 1014, 1032 (CA5 1990); Nor-Tex Agencies, Inc. v. Jones, 482 F.2d 1093, 1099 (CA5 1973); Pacific Dunlop Holdings Inc. v. Allen & Co. Inc., 993 F.2d 578, 587 (CA7 1993) (exemptions in § 4, 15 U.S. C. § 77d, do not limit § 12(2)'s reach); see also Adalman v. Baker, Watts & Co., 807 F.2d 359 (CA4 1986) (applying § 12(2) to private sale). "[L]ongstanding acceptance by the courts [of a judicial interpretation], coupled with Congress' failure to reject" that interpretation, "argues significantly in favor of accept[ing]" it. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975). The drafters of the Uniform Securities Act, in 1956, modeled § 410(a)(2) of that Act[6] on § 12(2) of the federal Securities *603 Act. Notably, the Uniform Act drafters did not read § 12(2) as limited to public offerings. Accordingly, they did not so limit § 410(a)(2). Bloomenthal, supra, § 14.05, at 1438 to 14-39; see also § 410(a)(2) comment, 7B U. L. A. 644 (1985) (describing as comparable scope of § 410(a)(2) and scope of Uniform Securities Act § 101, the Uniform Act's analog to Securities Act § 17(a)).[7] Section 410, it is true, does not contain the "prospectus or oral communication" language, perhaps because "prospectus" is not a defined term in the Uniform Securities Act. See § 401, 7B U. L. A. 578-581 (1985) (listing definitions). There is scant doubt, however, that the drafters of Uniform Act § 410(a)(2) intended the provision to have the same meaning as Securities Act § 12(2). See § 410(a)(2) comment, 7B U. L. A. 644 ("This clause is almost identical with § 12(2) of the Securities Act of 1933 . . . ."); L. Loss, Commentary on the Uniform Securities Act 147 (1976) ("The resemblance [of § 410(a)(2) of the Uniform Act] to § 12(2) of the Securities Act of 1933, 15 U.S. C. § 77l (2), will once more make for an interchangeability of federal and state judicial preceden[ts] in this very important area."). * * * In light of the text, drafting history, and longstanding scholarly and judicial understanding of § 12(2), I conclude that § 12(2) applies to a private resale of securities. If adjustment is in order, as the Court's opinion powerfully *604 suggests it is,[8] Congress is equipped to undertake the alteration. Accordingly, I dissent from the Court's opinion and judgment.

A seller's misrepresentation made "by means of a prospectus or oral communication" is actionable under 12(2) of the Securities Act of 1933, 15 U.S. C. 77l (2). To limit the scope of this civil liability provision, the Court maintains that a communication qualifies as a prospectus only if made during a public offering.[1] Communications during either secondary trading or a private placement are not "prospectuses," the Court declares, and thus are not covered by 12(2). As Justice Thomas persuasively demonstrates, the statute's language does not support the Court's reading. Section 12(2) contains no terms expressly confining the provision to public offerings, and the statutory definition of "prospectus"—"any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," 2(10), 15 U.S. C. 77b(10)—is capacious. The Court presents impressive policy reasons for its construction, but drafting history and the longstanding scholarly and judicial understanding of 12(2) caution against judicial resistance to the statute's defining text. I would leave any alteration to Congress. *597 I To construe a legislatively defined term, courts usually start with the defining section. Section 2(10) defines prospectus capaciously as "any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," 15 U.S. C. 77b(10). The items listed in the defining provision, notably "letters" and "communications," are common in private and secondary sales, as well as in public offerings. The 2(10) definition thus does not confine the 12(2) term "prospectus" to public offerings. The Court bypasses 2(10), and the solid support it gives the Court of Appeals' disposition. Instead of beginning at the beginning, by first attending to the definition section, the Court starts with 10, 15 U.S. C. 77j, a substantive provision. See ante, at 568-569. The Court correctly observes that the term "prospectus" has a circumscribed meaning in that context. A prospectus within the contemplation of 10 is a formal document, typically a document composing part of a registration statement; a 10 prospectus, all agree, appears only in public offerings. The Court then proceeds backward; it reads into the literally and logically prior definition section, 2(10), the meaning "prospectus" has in 10. To justify its backward reading—proceeding from 10 to 2(10) and not the other way round—the Court states that it "cannot accept the conclusion that [the operative word `prospectus'] means one thing in one section of the Act and something quite different in another." See ante, at 573. Our decisions, however, constantly recognize that "a characterization fitting in certain contexts may be unsuitable in others." Nations Bank of N. C., N. A. v. Variable Annuity Life Ins. Co., ante, at 262. In Atlantic Cleaners & Dyers, we held that the word "trade" has a more encompassing meaning in *598 3 than in 1 of the Sherman Act, see and explained: "Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning. But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent. "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." See also Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against."). According "prospectus" discrete meanings in 10 and 12(2) is consistent with Congress' specific instruction in 2 that definitions apply "unless the context otherwise requires," 15 U.S. C. 77b. As the Court of Appeals construed the Act, 2(10)'s definition of "prospectus" governs 12(2), which accommodates without strain the definition's broad reach; by contrast, the specific context of 10 requires a correspondingly specific reading of "prospectus." Indeed, in the Investment Company Act of 1940, Congress explicitly recognized that the Securities Act uses "prospectus" in two different senses—one in 10, and another in the rest of the Act: *599 "`Prospectus,' as used in [ 22 of the Investment Company Act], means a written prospectus intended to meet the requirements of section 10(a) of the Securities Act of 1933and currently in use. As used elsewhere, `prospectus' means a prospectus as defined in the Securities Act of 1933." 2(31), as amended, 15 U.S. C. 80a-2(31).[2] II Most provisions of the Securities Act govern only public offerings, and the legislative history pertaining to the Act as a whole shares this orientation. See ante, at 580 (citing H. R. Rep. No. 85, 73d Cong., 1st Sess., 5 (1933)). Section 17(a) of the Act, 15 U.S. C. 77q(a), however, is not limited to public offerings; that enforcement provision, this Court has recognized, also covers secondary trading. See United The drafting history is at least consistent with the conclusion that 12(2), like 17(a), is not limited to public offerings. The drafters of the Securities Act modeled this federal legislation on the British Companies Act, 19 & 20 Geo. 5, ch. 23 (1929). See Landis, The Legislative History of the Securities Act of 1933, ; see also 6 U.S. 119, The Companies Act defined "prospectus" as "any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company," 19 & 20 Geo. 5, ch. 23, 380(1) (1929) (emphasis added). Though the drafters of the Securities Act borrowed the first four *600 terms of this definition, they did not import from the British legislation the language limiting prospectuses to communications "offering [securities] to the public." This conspicuous omission suggests that the drafters intended the defined term "prospectus" to reach beyond communications used in public offerings.[3] The House Conference Report, which explains the Act in its final form, describes 12(2) in broad terms, and nowhere suggests that the provision is limited to public offerings: "The House bill (sec. 12) imposes civil liability for using the mails or the facilities of interstate commerce to sell securities (including securities exempt, under section 3, from other provisions of the bill) by means of representations which are untrue or are misleading by reason of omissions of material facts." H. R. Conf. Rep. No. 152, 73d Cong., 1st Sess., 26-27 (1933) (emphasis added). Nor does the Report mention the word "prospectus," even though one would expect that word to figure prominently if it were the significant limitation the Court describes. See also The Proper Role of Securities Act Section 12(2) as an After market Remedy for Disclosure Violations, 47 Bus. Law. 711, 719-724 (offering detailed analysis of legislative history).[4] *601 Commentators writing shortly after passage of the Act understood 12(2) to cover resales and private sales, as well as public offerings. Felix Frankfurter, organizer of the team that drafted the statute, firmly stated this view. See Frankfurter, The Federal Securities Act: II, 8 Fortune 53, 108 (1933) (Act "seeks to terminate the facilities of the mails and of interstate commerce for dishonest or unfair dealings in the sale of all private or foreign government securities, new or old ") (emphasis added). William O. Douglas expressed the same understanding. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171, 183 (1933) (noting that, except for transactions involving securities exempt under 3(a)(2), 15 U.S. C. 77c(a)(2), no securities or transactions are exempt from 12(2)). Most subsequent commentators have agreed that 12(2), like 17(a), is not confined to public offerings. See, e. g., H. Securities Law Handbook 14.05, pp. 14-13, 14-38 (1991); 2 A. Bromberg & L. Lowenfels, Securities Fraud and Commodities Fraud 5.2(600) ; 1 T. Hazen, Law of Securities Regulation 7.5, p. 318 ; 17A J. Hicks, Civil Liabilities: Enforcement and Litigation under the 1933 Act 6.01[3], pp. 6-12 to 6-39 (1994); 9 L. Loss & J. Seligman, Securities Regulation 4217-4222 ; Maynard, Section 12(2) of the Securities Act of 1933: A *602 Remedy for Fraudulent Post distribution Trading?, 20 Sec. Reg. L. J. 152 ; ; Comment, Applying Section 12(2) of the 1933 Securities Act to the After market, But see Weiss, The Courts Have It Right: Securities Act Section 12(2) Applies Only to Public Offerings, 48 Bus. Law. 1 While Courts of Appeals have divided on 12(2)'s application to secondary transactions,[5] every Court of Appeals to consider the issue has ruled that private placements are subject to 12(2). See Metromedia cert. denied, ; ; Nor-Tex Agencies, ; Pacific Dunlop Holdings (exemptions in 4, 15 U.S. C. 77d, do not limit 12(2)'s reach); see also (applying 12(2) to private sale). "[L]ongstanding acceptance by the courts [of a judicial interpretation], coupled with Congress' failure to reject" that interpretation, "argues significantly in favor of accept[ing]" it. Blue Chip The drafters of the Uniform Securities Act, in 1956, modeled 410(a)(2) of that Act[6] on 12(2) of the federal Securities *603 Act. Notably, the Uniform Act drafters did not read 12(2) as limited to public offerings. Accordingly, they did not so limit 410(a)(2). 14.05, at 1438 to 14-39; see also 410(a)(2) comment, 7B U. L. A. 644 (1985) (describing as comparable scope of 410(a)(2) and scope of Uniform Securities Act 101, the Uniform Act's analog to Securities Act 17(a)).[7] Section 410, it is true, does not contain the "prospectus or oral communication" language, perhaps because "prospectus" is not a defined term in the Uniform Securities Act. See 401, 7B U. L. A. 578-581 (1985) (listing definitions). There is scant doubt, however, that the drafters of Uniform Act 410(a)(2) intended the provision to have the same meaning as Securities Act 12(2). See 410(a)(2) comment, 7B U. L. A. 644 ("This clause is almost identical with 12(2) of the Securities Act of 1933"); L. Loss, Commentary on the Uniform Securities Act 147 (1976) ("The resemblance [of 410(a)(2) of the Uniform Act] to 12(2) of the Securities Act of 1933, 15 U.S. C. 77l (2), will once more make for an interchangeability of federal and state judicial preceden[ts] in this very important area."). * * * In light of the text, drafting history, and longstanding scholarly and judicial understanding of 12(2), I conclude that 12(2) applies to a private resale of securities. If adjustment is in order, as the Court's opinion powerfully *604 suggests it is,[8] Congress is equipped to undertake the alteration. Accordingly, I dissent from the Court's opinion and judgment.

Justice Alito

majority

Taniguchi v. Kan Pacific Saipan, Ltd.

https://www.courtlistener.com/opinion/800569/taniguchi-v-kan-pacific-saipan-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/800569/

2011-055

The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U.S. C. §1920. The Court Interpreters Act amended that statute to include “compensation of interpreters.” §1920(6); see also §7, 92 Stat. 2044. The question pre- sented in this case is whether “compensation of interpret- ers” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation. I This case arises from a personal injury action brought by petitioner Kouichi Taniguchi, a professional baseball player in Japan, against respondent Kan Pacific Saipan, Ltd., the owner of a resort in the Northern Mariana Is- lands. Petitioner was injured when his leg broke through a wooden deck during a tour of respondent’s resort prop- erty. Initially, petitioner said that he needed no medical 2 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court attention, but two weeks later, he informed respondent that he had suffered cuts, bruises, and torn ligaments from the accident. Due to these alleged injuries, he claimed damages for medical expenses and for lost income from contracts he was unable to honor. After discovery concluded, both parties moved for summary judgment. The United States District Court for the Northern Ma- riana Islands granted respondent’s motion on the ground that petitioner offered no evidence that respondent knew of the defective deck or otherwise failed to exercise rea- sonable care. In preparing its defense, respondent paid to have vari- ous documents translated from Japanese to English. After the District Court granted summary judgment in respond- ent’s favor, respondent submitted a bill for those costs. Over petitioner’s objection, the District Court awarded the costs to respondent as “compensation of interpreters” under §1920(6). Explaining that interpreter services “can- not be separated into ‘translation’ and ‘interpretation,’ ” App. to Pet. for Cert. 25a, the court held that costs for document translation “fal[l] within the meaning of ‘compensation of an interpreter,’ ” ibid. Finding that it was necessary for respondent to have the documents translated in order to depose petitioner, the court con- cluded that the translation services were properly taxed as costs. The United States Court of Appeals for the Ninth Cir- cuit affirmed both the District Court’s grant of summary judgment and its award of costs. The court rejected peti- tioner’s argument that the cost of document translation services is not recoverable as “compensation of interpret- ers.” The court explained that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech Cite as: 566 U. S. ____ (2012) 3 Opinion of the Court versus written documents.” 633 F.3d 1218, 1221 (2011). “More importantly,” the court stressed, this construction of the statute “is more compatible with Rule 54 of the Fed- eral Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” Ibid. The court thus concluded that “the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language, so long as interpretation of the items is neces- sary to the litigation.” Id., at 1221–1222. Because there is a split among the Courts of Appeals on this issue,1 we granted certiorari. 564 U. S. ___ (2011). II A Although the taxation of costs was not allowed at com- mon law, it was the practice of federal courts in the early years to award costs in the same manner as the courts of the relevant forum State. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247–248 (1975). In 1793, Congress enacted a statute that authorized the awarding of certain costs to prevailing parties based on state law: “That there be allowed and taxed in the supreme, cir- cuit and district courts of the United States, in favour of the parties obtaining judgments therein, such com- pensation for their travel and attendance, and for at- —————— 1 Compare BDT Products, Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419 (CA6 2005) (holding that document translation costs are taxable under §1920(6) because the “definition of interpret expressly includes to ‘translate into intelligible or familiar language’ ” (quoting Webster’s Third New International Dictionary 1182 (1981))), with Extra Equi­ pamentos E Exportação Ltda. v. Case Corp., 541 F.3d 719, 727–728 (CA7 2008) (holding that document translation costs are not taxable under §1920(6) because an interpreter is “normally understood [as] a person who translates living speech from one language to another”). 4 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court tornies and counsellors’ fees . . . as are allowed in the supreme or superior courts of the respective states.” Act of Mar. 1, 1793, §4, 1 Stat. 333. Although twice reenacted, this provision expired in 1799. Alyeska Pipeline, supra, at 248, n. 19; Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 439 (1987). Yet even in the absence of express legislative authorization, the practice of referring to state rules for the taxation of costs persisted. See Alyeska Pipeline, 421 U.S., at 250. Not until 1853 did Congress enact legislation specifying the costs allowable in federal court. Id., at 251. The impetus for a uniform federal rule was largely the conse- quence of two developments. First, a “great diversity in practice among the courts” had emerged. Ibid. Second, “losing litigants were being unfairly saddled with exorbi- tant fees for the victor’s attorney.” Ibid. Against this backdrop, Congress passed the 1853 Fee Act, which we have described as a “far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts.” Id., at 251–252. The substance of this Act was transmitted through the Revised Statutes of 1874 and the Judicial Code of 1911 to the Revised Code of 1948, where it was codified, “without any apparent intent to change the controlling rules,” as 28 U.S. C. §1920. 421 U.S., at 255. Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d)(1). We have held that “§1920 defines the term ‘costs’ as used in Rule 54(d).” Crawford Fitting, 482 U.S., at 441. In so doing, we rejected the view that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in Cite as: 566 U. S. ____ (2012) 5 Opinion of the Court §1920.” Ibid. As originally configured, §1920 contained five categories of taxable costs: (1) “[f]ees of the clerk and marshal”; (2) “[f ]ees of the court reporter for all or any part of the steno- graphic transcript necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and wit- nesses”; (4) “[f]ees for exemplification and copies of papers necessarily obtained for use in the case”; and (5) “[d]ocket fees under section 1923 of this title.” 62 Stat. 955. In 1978, Congress enacted the Court Interpreters Act, which amended §1920 to add a sixth category: “Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” 28 U.S. C. §1920(6); see also §7, 92 Stat. 2044. We are concerned here with this sixth category, specifically the item of tax- able costs identified as “compensation of interpreters.” B To determine whether the item “compensation of inter- preters” includes costs for document translation, we must look to the meaning of “interpreter.” That term is not defined in the Court Interpreters Act or in any other relevant statutory provision. When a term goes undefined in a statute, we give the term its ordinary meaning. As­ grow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995). The question here is: What is the ordinary meaning of “interpreter”? Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined “interpreter” as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as “[o]ne who translates orally from one language into another.” American Heritage Dictionary 685 (1978). The Scribner-Bantam English Dictionary defined the related word “interpret” as “to translate orally.” Scribner- 6 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of “interpret” as “to translate what is said in a foreign lan- guage.” Random House Dictionary of the English Lan- guage 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined “interpreter” as “[o]ne who translates languages,” but then divided that defini- tion into two senses: “a. [a] translator of books or writ- ings,” which it designated as obsolete, and “b. [o]ne who translates the communications of persons speaking differ- ent languages; spec. one whose office it is to do so orally in the presence of the persons; a dragoman.” 5 Oxford Eng- lish Dictionary 416 (1933); see also Concise Oxford Dic- tionary of Current English 566 (6th ed. 1976) (“One who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence”); Chambers Twentieth Century Dictionary 686 (1973) (“one who translates orally for the benefit of two or more parties speaking different languages: . . . a transla- tor (obs.)”). Pre-1978 legal dictionaries also generally defined the words “interpreter” and “interpret” in terms of oral trans- lation. The then-current edition of Black’s Law Diction- ary, for example, defined “interpreter” as “[a] person sworn at a trial to interpret the evidence of a foreigner . . . to the court,” and it defined “interpret” in relevant part as “to translate orally from one tongue to another.” Black’s Law Dictionary 954, 953 (rev. 4th ed. 1968); see also W. Anderson, A Dictionary of Law 565 (1888) (“One who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury”); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 639 (1878) (“one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language”). But see Ballentine’s Law Dictionary 655, 654 (3d ed. 1969) (defining “inter- Cite as: 566 U. S. ____ (2012) 7 Opinion of the Court preter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language,” and “interpret” as “to translate from a foreign language”). Against these authorities, respondent relies almost exclusively on Webster’s Third New International Diction- ary (hereinafter Webster’s Third). The version of that dictionary in print when Congress enacted the Court Interpreters Act defined “interpreter” as “one that trans- lates; esp: a person who translates orally for parties con- versing in different tongues.” Webster’s Third 1182 (1976).2 The sense divider esp (for especially) indicates that the most common meaning of the term is one “who translates orally,” but that meaning is subsumed within the more general definition “one that translates.” See 12,000 Words: A Supplement to Webster’s Third 15a (1986) (explaining that esp “is used to introduce the most common meaning included in the more general preceding definition”). For respondent, the general definition suf- fices to establish that the term “interpreter” ordinarily includes persons who translate the written word. Explain- ing that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ ” the Court of Appeals reached the same conclusion. 633 F.3d, at 1221. We disagree. That a definition is broad enough to encompass one sense of a word does not establish that the word is ordi­ narily understood in that sense. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. —————— 2 A handful of other contemporaneous dictionaries used a similar formulation. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 665 (1977) (“One who interprets or translates; specifically, one who serves as oral translator between people speaking different languages”); 1 World Book Dictionary 1103 (C. Barnhart & R. Barnhart eds. 1977) (“a person whose business is translating, especially orally, from a foreign language”); Cassell’s English Dictionary 617 (4th ed. 1969) (“One who interprets, esp. one employed to translate orally to persons speaking a foreign language”). 8 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court 296, 301 (1989) (relying on the “most common meaning” and the “ordinary and natural signification” of the word “request,” even though it may sometimes “double for ‘de- mand’ or ‘command’ ”). The fact that the definition of “interpreter” in Webster’s Third has a sense divider denot- ing the most common usage suggests that other usages, although acceptable, might not be common or ordinary. It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. See supra, at 5–7. Although the Oxford English Dictionary, one of the most authoritative on the English language, recognized that “interpreter” can mean one who translates writings, it expressly designated that meaning as obsolete. See supra, at 6. Were the meaning of “interpreter” that respondent advocates truly common or ordinary, we would expect to see more support for that meaning. We certainly would not expect to see it designated as obsolete in the Oxford English Dictionary. Any definition of a word that is absent from many diction- aries and is deemed obsolete in others is hardly a common or ordinary meaning. Based on our survey of the relevant dictionaries, we conclude that the ordinary or common meaning of “inter- preter” does not include those who translate writings. Instead, we find that an interpreter is normally under- stood as one who translates orally from one language to another. This sense of the word is far more natural. As the Seventh Circuit put it: “Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no one would refer to him as an English- language ‘interpreter’ of these works.” Extra Equipamen­ tos E Exportação Ltda. v. Case Corp., 541 F.3d 719, 727 (2008). To be sure, the word “interpreter” can encompass per- Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court sons who translate documents, but because that is not the ordinary meaning of the word, it does not control unless the context in which the word appears indicates that it does. Nothing in the Court Interpreters Act or in §1920, however, even hints that Congress intended to go beyond the ordinary meaning of “interpreter” and to embrace the broadest possible meaning that the definition of the word can bear. If anything, the statutory context suggests the opposite: that the word “interpreter” applies only to those who translate orally. As previously mentioned, Congress en- acted §1920(6) as part of the Court Interpreters Act. The main provision of that Act is §2(a), codified in 28 U.S. C. §§1827 and 1828. See 92 Stat. 2040–2042. Par- ticularly relevant here is §1827. As it now reads, that statute provides for the establishment of “a program to facilitate the use of certified and otherwise qualified inter- preters in judicial proceedings instituted by the United States.” §1827(a). Subsection (d) directs courts to use an interpreter in any criminal or civil action instituted by the United States if a party or witness “speaks only or primar- ily a language other than the English language” or “suffers from a hearing impairment” “so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness’ comprehension of questions and the presen- tation of such testimony.” §1827(d)(1).3 As originally enacted, subsection (k) mandated that the “interpretation provided by certified interpreters . . . shall be in the con- secutive mode except that the presiding judicial officer . . . may authorize a simultaneous or summary interpreta- tion.” §1827(k) (1976 ed., Supp. II); see also 92 Stat. 2042. —————— 3 This provision remains substantially the same as it appeared when first enacted. See 28 U.S. C. §1827(d)(1) (1976 ed., Supp. II); see also 92 Stat. 2040. 10 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court In its current form, subsection (k) provides that interpre- tation “shall be in the simultaneous mode for any party . . . and in the consecutive mode for witnesses,” unless the court directs otherwise. The simultaneous, consecutive, and summary modes are all methods of oral interpretation and have nothing to do with the translation of writings.4 Taken together, these provisions are a strong contextual clue that Congress was dealing only with oral translation in the Court Interpreters Act and that it intended to use the term “interpreter” throughout the Act in its ordinary sense as someone who translates the spoken word. As we have said before, it is a “ ‘normal rule of statutory con- struction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (quoting Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 342 (1994)).5 The references to technical terminology in the Court Interpreters Act further suggest that Congress used “in- —————— 4 The simultaneous mode requires the interpreter “to interpret and to speak contemporaneously with the individual whose communication is being translated.” H. R. Rep. No. 95–1687, p. 8 (1978). The consecutive mode requires the speaker whose communication is being translated to pause so that the interpreter can “convey the testimony given.” Ibid. And the summary mode “allow[s] the interpreter to condense and distill the speech of the speaker.” Ibid.; see generally Zazueta, Attorneys Guide to the Use of Court Interpreters, 8 U. C. D. L. Rev. 471, 477–478 (1975). 5 The dissent agrees that context should help guide our analysis, but instead of looking to the Court Interpreters Act, it looks to “the practice of federal courts both before and after §1920(6)’s enactment.” Post, at 4 (opinion of GINSBURG, J.). The practice of federal courts after the Act’s enactment tells us nothing about what Congress intended at the time of enactment. And federal court practice before the Act under other provisions of §1920 tells us little, if anything, about what Congress intended when it added subsection (6). We think the statutory context in which the word “interpreter” appears is a more reliable guide to its meaning. Cite as: 566 U. S. ____ (2012) 11 Opinion of the Court terpreter” in a technical sense, and it is therefore signifi- cant that relevant professional literature draws a line between “interpreters,” who “are used for oral conversa- tions,” and “translators,” who “are used for written com- munications.” Zazueta, supra n. 4, at 477; see also M. Frankenthaler, Skills for Bilingual Legal Personnel 67 (1982) (“While the translator deals with the written word, the interpreter is concerned with the spoken language”); Brislin, Introduction, in Translation: Applications and Research 1 (R. Brislin ed. 1976) (explaining that when both terms are used together, translation “refers to the processing [of] written input, and interpretation to the processing of oral input” (emphasis deleted)); J. Herbert, Interpreter’s Handbook 1 (2d ed. 1952) (“In the present- day jargon of international organisations, the words trans- late, translations, translator are used when the immediate result of the work is a written text; and the words inter- pret, interpreter, interpretation when it is a speech deliv- ered orally”). That Congress specified “interpreters” but not “translators” is yet another signal that it intended to limit §1920(6) to the costs of oral, instead of written, translation.6 In sum, both the ordinary and technical meanings of “interpreter,” as well as the statutory context in which the word is found, lead to the conclusion that §1920(6) does not apply to translators of written materials.7 —————— 6 Some provisions within the United States Code use both “inter- preter” and “translator” together, thus implying that Congress under- stands the terms to have the distinct meanings described above. See, e.g., 8 U.S. C. §1555(b) (providing that appropriations for the Immigra- tion and Naturalization Service “shall be available for payment of . . . interpreters and translators who are not citizens of the United States”); 28 U.S. C. §530C(b)(1)(I) (providing that Department of Justice funds may be used for “[p]ayment of interpreters and translators who are not citizens of the United States”). 7 Our conclusion is buttressed by respondent’s concession at oral ar- gument that there is no provision in the United States Code where it is 12 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court C No other rule of construction compels us to depart from the ordinary meaning of “interpreter.” The Court of Ap- peals reasoned that a broader meaning is “more compat- ible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” 633 F.3d, at 1221. But we have never held that Rule 54(d) creates a presumption of statu- tory construction in favor of the broadest possible reading of the costs enumerated in §1920. To the contrary, we have made clear that the “discretion granted by Rule 54(d) is not a power to evade” the specific categories of costs set forth by Congress. Crawford Fitting, 482 U.S., at 442. “Rather,” we have said, “it is solely a power to decline to tax, as costs, the items enumerated in §1920.” Ibid. Rule 54(d) thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of “interpreter.” Our decision is in keeping with the narrow scope of taxable costs. “Although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2666, pp. 202– 203 (3d ed. 1998) (hereinafter Wright & Miller). Taxable costs are limited to relatively minor, incidental expenses as is evident from §1920, which lists such items as clerk —————— clear that the word extends to those who translate documents. Tr. of Oral Arg. 39; see also Brief for Petitioner 32 (“And the Code is wholly devoid of any corresponding definition of ‘interpreter’ extending to the translation of written documents”). As respondent acknowledged, either the word is used in a context that strongly suggests it applies only to oral translation or its meaning is unclear. See Tr. of Oral Arg. 38. Cite as: 566 U. S. ____ (2012) 13 Opinion of the Court fees, court reporter fees, expenses for printing and wit- nesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. In- deed, “the assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hair­ line Creations, Inc. v. Kefalas, 664 F.2d 652, 656 (CA7 1981). Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consult- ants, and investigators. It comes as little surprise, there- fore, that “costs almost always amount to less than the successful litigant’s total expenses in connection with a lawsuit.” 10 Wright & Miller §2666, at 203. Because taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in §1920. As for respondent’s extratextual arguments, they are more properly directed at Congress. Respondent contends that documentary evidence is no less important than testimonial evidence and that it would be anomalous to require the losing party to cover translation costs for spoken words but not for written words. Brief for Re- spondent 20. Respondent also observes that some transla- tion tasks are not entirely oral or entirely written. Id., at 20–24. One task, called “ ‘sight translation,’ ” involves the oral translation of a document. Id., at 21. Another task involves the written translation of speech. Ibid. And a third task, called “ ‘document comparison,’ ” involves com- paring documents in the source and target language to verify that the two are identical. Id., at 21–22. Respond- ent argues that a narrow definition cannot account for these variations and that a bright-line definition of “inter- preter” as someone who translates spoken and written words would avoid complication and provide a simple, administrable rule for district courts. Neither of these arguments convinces us that Congress must have intended to dispense with the ordinary mean- 14 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court ing of “interpreter” in §1920(6). First, Congress might have distinguished between oral and written translation out of a concern that requiring losing parties to bear the potentially sizable costs of translating discovery docu- ments, as opposed to the more limited costs of oral tes- timony, could be too burdensome and possibly unfair, especially for litigants with limited means. Cf. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (noting the argument “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel”). Congress might also have concluded that a document translator is more akin to an expert or consultant retained by a party to decipher documentary evidence—like, for instance, a forensic ac- countant—than to an interpreter whose real-time oral translation services are necessary for communication between litigants, witnesses, and the court.8 Second, respondent has not shown that any of the hy- brid translation/interpretation tasks to which it points actually arise with overwhelming frequency or that the problem of drawing the line between taxable and nontax- able costs in such cases will vex the trial courts. It cer- tainly has not shown that any such problems will be more troublesome than the task of sifting through translated —————— 8 The dissent contends that document translation, no less than oral translation, is essential “to equip the parties to present their case clearly and the court to decide the merits intelligently.” Post, at 5. But a document translator is no more important than an expert or consult- ant in making sense of otherwise incomprehensible documentary evidence, yet expenses for experts and consultants are generally not taxable as costs. To be sure, forgoing document translation can impair a litigant’s case, but document translation is not indispensable, in the way oral translation is, to the parties’ ability to communicate with each other, with witnesses, and with the court. Cite as: 566 U. S. ____ (2012) 15 Opinion of the Court discovery documents to ascertain which can be taxed as necessary to the litigation. In any event, the present case does not present a hybrid situation; it involves purely written translation, which falls outside the tasks per- formed by an “interpreter” as that term is ordinarily understood. * * * Because the ordinary meaning of “interpreter” is some- one who translates orally from one language to another, we hold that the category “compensation of interpreters” in §1920(6) does not include costs for document transla- tion. We therefore vacate the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. ____ (2012) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–1472 _________________ KOUICHI TANIGUCHI, PETITIONER v. KAN PACIFIC SAIPAN, LTD.,

The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U.S. C. The Court Interpreters Act amended that statute to include “compensation of interpreters.” see also The question pre- sented in this case is whether “compensation of interpret- ers” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation. I This case arises from a personal injury action brought by petitioner Kouichi Taniguchi, a professional baseball player in Japan, against respondent Kan Pacific Saipan, Ltd., the owner of a resort in the Northern Mariana Is- lands. Petitioner was injured when his leg broke through a wooden deck during a tour of respondent’s resort prop- erty. Initially, petitioner said that he needed no medical 2 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court attention, but two weeks later, he informed respondent that he had suffered cuts, bruises, and torn ligaments from the accident. Due to these alleged injuries, he claimed damages for medical expenses and for lost income from contracts he was unable to honor. After discovery concluded, both parties moved for summary judgment. The United States District Court for the Northern Ma- riana Islands granted respondent’s motion on the ground that petitioner offered no evidence that respondent knew of the defective deck or otherwise failed to exercise rea- sonable care. In preparing its defense, respondent paid to have vari- ous documents translated from Japanese to English. After the District Court granted summary judgment in respond- ent’s favor, respondent submitted a bill for those costs. Over petitioner’s objection, the District Court awarded the costs to respondent as “compensation of interpreters” under Explaining that interpreter services “can- not be separated into ‘translation’ and ‘interpretation,’ ” App. to Pet. for Cert. 25a, the court held that costs for document translation “fal[l] within the meaning of ‘compensation of an interpreter,’ ” Finding that it was necessary for respondent to have the documents translated in order to depose petitioner, the court con- cluded that the translation services were properly taxed as costs. The United States Court of Appeals for the Ninth Cir- cuit affirmed both the District Court’s grant of summary judgment and its award of costs. The court rejected peti- tioner’s argument that the cost of document translation services is not recoverable as “compensation of interpret- ers.” The court explained that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech Cite as: 566 U. S. (2012) 3 Opinion of the Court versus written documents.” “More importantly,” the court stressed, this construction of the statute “is more compatible with Rule 54 of the Fed- eral Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” The court thus concluded that “the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language, so long as interpretation of the items is neces- sary to the litigation.” at –1222. Because there is a split among the Courts of Appeals on this issue,1 we granted certiorari. 564 U. S. II A Although the taxation of costs was not allowed at com- mon law, it was the practice of federal courts in the early years to award costs in the same manner as the courts of the relevant forum State. Alyeska Service In 1793, Congress enacted a statute that authorized the awarding of certain costs to prevailing parties based on state law: “That there be allowed and taxed in the supreme, cir- cuit and district courts of the United States, in favour of the parties obtaining judgments therein, such com- pensation for their travel and attendance, and for at- —————— 1 Compare BDT Products, 419 (CA6 2005) (holding that document translation costs are taxable under because the “definition of interpret expressly includes to ‘translate into intelligible or familiar language’ ” (quoting Webster’s Third New International Dictionary 1182 (1981))), with Extra Equi­ pamentos E Exportação –728 (CA7 2008) (holding that document translation costs are not taxable under because an interpreter is “normally understood [as] a person who translates living speech from one language to another”). 4 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court tornies and counsellors’ fees as are allowed in the supreme or superior courts of the respective states.” Act of Mar. 1, 1793, Although twice reenacted, this provision expired in 1799. Alyeska ; Crawford Yet even in the absence of express legislative authorization, the practice of referring to state rules for the taxation of costs persisted. See Alyeska Not until 1853 did Congress enact legislation specifying the costs allowable in federal court. The impetus for a uniform federal rule was largely the conse- quence of two developments. First, a “great diversity in practice among the courts” had emerged. Second, “losing litigants were being unfairly saddled with exorbi- tant fees for the victor’s attorney.” Against this backdrop, Congress passed the 1853 Fee Act, which we have described as a “far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts.” –252. The substance of this Act was transmitted through the Revised Statutes of 4 and the Judicial Code of 1911 to the Revised Code of 1948, where it was codified, “without any apparent intent to change the controlling rules,” as 28 U.S. C. 421 U.S., at 255. Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d)(1). We have held that defines the term ‘costs’ as used in Rule 54(d).” Crawford In so doing, we rejected the view that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in Cite as: 566 U. S. (2012) 5 Opinion of the Court ” As originally configured, contained five categories of taxable costs: (1) “[f]ees of the clerk and marshal”; (2) “[f ]ees of the court reporter for all or any part of the steno- graphic transcript necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and wit- nesses”; (4) “[f]ees for exemplification and copies of papers necessarily obtained for use in the case”; and (5) “[d]ocket fees under section 1923 of this title.” In 1978, Congress enacted the Court Interpreters Act, which amended to add a sixth category: “Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” 28 U.S. C. see also We are concerned here with this sixth category, specifically the item of tax- able costs identified as “compensation of interpreters.” B To determine whether the item “compensation of inter- preters” includes costs for document translation, we must look to the meaning of “interpreter.” That term is not defined in the Court Interpreters Act or in any other relevant statutory provision. When a term goes undefined in a statute, we give the term its ordinary meaning. As­ grow Seed The question here is: What is the ordinary meaning of “interpreter”? Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined “interpreter” as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as “[o]ne who translates orally from one language into another.” American Heritage Dictionary 685 (1978). The Scribner-Bantam English Dictionary defined the related word “interpret” as “to translate orally.” Scribner- 6 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of “interpret” as “to translate what is said in a foreign lan- guage.” Random House Dictionary of the English Lan- guage 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined “interpreter” as “[o]ne who translates languages,” but then divided that defini- tion into two senses: “a. [a] translator of books or writ- ings,” which it designated as obsolete, and “b. [o]ne who translates the communications of persons speaking differ- ent languages; spec. one whose office it is to do so orally in the presence of the persons; a dragoman.” 5 Oxford Eng- lish Dictionary 416 (1933); see also Concise Oxford Dic- tionary of Current English 566 (6th ed. 1976) (“One who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence”); Chambers Twentieth Century Dictionary 686 (1973) (“one who translates orally for the benefit of two or more parties speaking different languages: a transla- tor (obs.)”). Pre-1978 legal dictionaries also generally defined the words “interpreter” and “interpret” in terms of oral trans- lation. The then-current edition of Black’s Law Diction- ary, for example, defined “interpreter” as “[a] person sworn at a trial to interpret the evidence of a foreigner to the court,” and it defined “interpret” in relevant part as “to translate orally from one tongue to another.” Black’s Law Dictionary 954, 953 (rev. 4th ed. 1968); see also W. Anderson, A Dictionary of Law 565 (1888) (“One who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury”); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 639 (8) (“one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language”). But see Ballentine’s Law Dictionary 655, 654 (3d ed. 1969) (defining “inter- Cite as: 566 U. S. (2012) 7 Opinion of the Court preter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language,” and “interpret” as “to translate from a foreign language”). Against these authorities, respondent relies almost exclusively on Webster’s Third New International Diction- ary (hereinafter Webster’s Third). The version of that dictionary in print when Congress enacted the Court Interpreters Act defined “interpreter” as “one that trans- lates; esp: a person who translates orally for parties con- versing in different tongues.” Webster’s Third 1182 (1976).2 The sense divider esp (for especially) indicates that the most common meaning of the term is one “who translates orally,” but that meaning is subsumed within the more general definition “one that translates.” See 12,000 Words: A Supplement to Webster’s Third 15a (1986) (explaining that esp “is used to introduce the most common meaning included in the more general preceding definition”). For respondent, the general definition suf- fices to establish that the term “interpreter” ordinarily includes persons who translate the written word. Explain- ing that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ ” the Court of Appeals reached the same 633 F.3d, at We disagree. That a definition is broad enough to encompass one sense of a word does not establish that the word is ordi­ narily understood in that sense. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. —————— 2 A handful of other contemporaneous dictionaries used a similar formulation. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 665 (1977) (“One who interprets or translates; specifically, one who serves as oral translator between people speaking different languages”); 1 World Book Dictionary 1103 (C. Barnhart & R. Barnhart eds. 1977) (“a person whose business is translating, especially orally, from a foreign language”); Cassell’s English Dictionary 617 (4th ed. 1969) (“One who interprets, esp. one employed to translate orally to persons speaking a foreign language”). 8 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court 296, 301 (1989) (relying on the “most common meaning” and the “ordinary and natural signification” of the word “request,” even though it may sometimes “double for ‘de- mand’ or ‘command’ ”). The fact that the definition of “interpreter” in Webster’s Third has a sense divider denot- ing the most common usage suggests that other usages, although acceptable, might not be common or ordinary. It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. See at 5–7. Although the Oxford English Dictionary, one of the most authoritative on the English language, recognized that “interpreter” can mean one who translates writings, it expressly designated that meaning as obsolete. See Were the meaning of “interpreter” that respondent advocates truly common or ordinary, we would expect to see more support for that meaning. We certainly would not expect to see it designated as obsolete in the Oxford English Dictionary. Any definition of a word that is absent from many diction- aries and is deemed obsolete in others is hardly a common or ordinary meaning. Based on our survey of the relevant dictionaries, we conclude that the ordinary or common meaning of “inter- preter” does not include those who translate writings. Instead, we find that an interpreter is normally under- stood as one who translates orally from one language to another. This sense of the word is far more natural. As the Seventh Circuit put it: “Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no one would refer to him as an English- language ‘interpreter’ of these works.” Extra Equipamen­ tos E Exportação (2008). To be sure, the word “interpreter” can encompass per- Cite as: 566 U. S. (2012) 9 Opinion of the Court sons who translate documents, but because that is not the ordinary meaning of the word, it does not control unless the context in which the word appears indicates that it does. Nothing in the Court Interpreters Act or in however, even hints that Congress intended to go beyond the ordinary meaning of “interpreter” and to embrace the broadest possible meaning that the definition of the word can bear. If anything, the statutory context suggests the opposite: that the word “interpreter” applies only to those who translate orally. As previously mentioned, Congress en- acted as part of the Court Interpreters Act. The main provision of that Act is codified in 28 U.S. C. and 1828. See –2042. Par- ticularly relevant here is As it now reads, that statute provides for the establishment of “a program to facilitate the use of certified and otherwise qualified inter- preters in judicial proceedings instituted by the United States.” Subsection (d) directs courts to use an interpreter in any criminal or civil action instituted by the United States if a party or witness “speaks only or primar- ily a language other than the English language” or “suffers from a hearing impairment” “so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness’ comprehension of questions and the presen- tation of such testimony.” As originally enacted, subsection (k) mandated that the “interpretation provided by certified interpreters shall be in the con- secutive mode except that the presiding judicial officer may authorize a simultaneous or summary interpreta- tion.” (1976 ed., Supp. II); see also —————— 3 This provision remains substantially the same as it appeared when first enacted. See 28 U.S. C. (1976 ed., Supp. II); see also 10 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court In its current form, subsection (k) provides that interpre- tation “shall be in the simultaneous mode for any party and in the consecutive mode for witnesses,” unless the court directs otherwise. The simultaneous, consecutive, and summary modes are all methods of oral interpretation and have nothing to do with the translation of writings.4 Taken together, these provisions are a strong contextual clue that Congress was dealing only with oral translation in the Court Interpreters Act and that it intended to use the term “interpreter” throughout the Act in its ordinary sense as someone who translates the spoken word. As we have said before, it is a “ ‘normal rule of statutory con- struction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” (quoting Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 342 (1994)).5 The references to technical terminology in the Court Interpreters Act further suggest that Congress used “in- —————— 4 The simultaneous mode requires the interpreter “to interpret and to speak contemporaneously with the individual whose communication is being translated.” H. R. Rep. No. 95–1687, p. 8 (1978). The consecutive mode requires the speaker whose communication is being translated to pause so that the interpreter can “convey the testimony given.” And the summary mode “allow[s] the interpreter to condense and distill the speech of the speaker.” ; see generally Attorneys Guide to the Use of Court Interpreters, 8 U. C. D. L. Rev. 471, 477–478 5 The dissent agrees that context should help guide our analysis, but instead of looking to the Court Interpreters Act, it looks to “the practice of federal courts both before and after ’s enactment.” Post, at 4 (opinion of GINSBURG, J.). The practice of federal courts after the Act’s enactment tells us nothing about what Congress intended at the time of enactment. And federal court practice before the Act under other provisions of tells us little, if anything, about what Congress intended when it added subsection (6). We think the statutory context in which the word “interpreter” appears is a more reliable guide to its meaning. Cite as: 566 U. S. (2012) 11 Opinion of the Court terpreter” in a technical sense, and it is therefore signifi- cant that relevant professional literature draws a line between “interpreters,” who “are used for oral conversa- tions,” and “translators,” who “are used for written com- munications.” at 477; see also M. Frankenthaler, Skills for Bilingual Legal Personnel 67 (1982) (“While the translator deals with the written word, the interpreter is concerned with the spoken language”); Brislin, Introduction, in Translation: Applications and Research 1 (R. Brislin ed. 1976) (explaining that when both terms are used together, translation “refers to the processing [of] written input, and interpretation to the processing of oral input” (emphasis deleted)); J. Herbert, Interpreter’s Handbook 1 (2d ed. 1952) (“In the present- day jargon of international organisations, the words trans- late, translations, translator are used when the immediate result of the work is a written text; and the words inter- pret, interpreter, interpretation when it is a speech deliv- ered orally”). That Congress specified “interpreters” but not “translators” is yet another signal that it intended to limit to the costs of oral, instead of written, translation.6 In sum, both the ordinary and technical meanings of “interpreter,” as well as the statutory context in which the word is found, lead to the conclusion that does not apply to translators of written materials.7 —————— 6 Some provisions within the United States Code use both “inter- preter” and “translator” together, thus implying that Congress under- stands the terms to have the distinct meanings described above. See, e.g., 8 U.S. C. (providing that appropriations for the Immigra- tion and Naturalization Service “shall be available for payment of interpreters and translators who are not citizens of the United States”); 28 U.S. C. (providing that Department of Justice funds may be used for “[p]ayment of interpreters and translators who are not citizens of the United States”). 7 Our conclusion is buttressed by respondent’s concession at oral ar- gument that there is no provision in the United States Code where it is 12 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court C No other rule of construction compels us to depart from the ordinary meaning of “interpreter.” The Court of Ap- peals reasoned that a broader meaning is “more compat- ible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” 633 F.3d, at But we have never held that Rule 54(d) creates a presumption of statu- tory construction in favor of the broadest possible reading of the costs enumerated in To the contrary, we have made clear that the “discretion granted by Rule 54(d) is not a power to evade” the specific categories of costs set forth by Congress. Crawford “Rather,” we have said, “it is solely a power to decline to tax, as costs, the items enumerated in ” Rule 54(d) thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of “interpreter.” Our decision is in keeping with the narrow scope of taxable costs. “Although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure pp. 202– 203 (3d ed. 1998) (hereinafter Wright & Miller). Taxable costs are limited to relatively minor, incidental expenses as is evident from which lists such items as clerk —————— clear that the word extends to those who translate documents. Tr. of Oral Arg. 39; see also Brief for Petitioner 32 (“And the Code is wholly devoid of any corresponding definition of ‘interpreter’ extending to the translation of written documents”). As respondent acknowledged, either the word is used in a context that strongly suggests it applies only to oral translation or its meaning is unclear. See Tr. of Oral Arg. 38. Cite as: 566 U. S. (2012) 13 Opinion of the Court fees, court reporter fees, expenses for printing and wit- nesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. In- deed, “the assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hair­ line Creations, (CA7 1981). Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consult- ants, and investigators. It comes as little surprise, there- fore, that “costs almost always amount to less than the successful litigant’s total expenses in connection with a lawsuit.” 10 Wright & Miller at 203. Because taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in As for respondent’s extratextual arguments, they are more properly directed at Congress. Respondent contends that documentary evidence is no less important than testimonial evidence and that it would be anomalous to require the losing party to cover translation costs for spoken words but not for written words. Brief for Re- spondent 20. Respondent also observes that some transla- tion tasks are not entirely oral or entirely written. at 20–24. One task, called “ ‘sight translation,’ ” involves the oral translation of a document. Another task involves the written translation of speech. And a third task, called “ ‘document comparison,’ ” involves com- paring documents in the source and target language to verify that the two are identical. –22. Respond- ent argues that a narrow definition cannot account for these variations and that a bright-line definition of “inter- preter” as someone who translates spoken and written words would avoid complication and provide a simple, administrable rule for district courts. Neither of these arguments convinces us that Congress must have intended to dispense with the ordinary mean- 14 TANIGUCHI v. KAN PACIFIC SAIPAN, LTD. Opinion of the Court ing of “interpreter” in First, Congress might have distinguished between oral and written translation out of a concern that requiring losing parties to bear the potentially sizable costs of translating discovery docu- ments, as opposed to the more limited costs of oral tes- timony, could be too burdensome and possibly unfair, especially for litigants with limited means. Cf. Fleischmann Distilling (1967) (noting the argument “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel”). Congress might also have concluded that a document translator is more akin to an expert or consultant retained by a party to decipher documentary evidence—like, for instance, a forensic ac- countant—than to an interpreter whose real-time oral translation services are necessary for communication between litigants, witnesses, and the court.8 Second, respondent has not shown that any of the hy- brid translation/interpretation tasks to which it points actually arise with overwhelming frequency or that the problem of drawing the line between taxable and nontax- able costs in such cases will vex the trial courts. It cer- tainly has not shown that any such problems will be more troublesome than the task of sifting through translated —————— 8 The dissent contends that document translation, no less than oral translation, is essential “to equip the parties to present their case clearly and the court to decide the merits intelligently.” Post, at 5. But a document translator is no more important than an expert or consult- ant in making sense of otherwise incomprehensible documentary evidence, yet expenses for experts and consultants are generally not taxable as costs. To be sure, forgoing document translation can impair a litigant’s case, but document translation is not indispensable, in the way oral translation is, to the parties’ ability to communicate with each other, with witnesses, and with the court. Cite as: 566 U. S. (2012) 15 Opinion of the Court discovery documents to ascertain which can be taxed as necessary to the litigation. In any event, the present case does not present a hybrid situation; it involves purely written translation, which falls outside the tasks per- formed by an “interpreter” as that term is ordinarily understood. * * * Because the ordinary meaning of “interpreter” is some- one who translates orally from one language to another, we hold that the category “compensation of interpreters” in does not include costs for document transla- tion. We therefore vacate the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. (2012) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–1472 KOUICHI TANIGUCHI, PETITIONER v. KAN PACIFIC SAIPAN, LTD.,

Justice Rehnquist

dissenting

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue

https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/

https://www.courtlistener.com/api/rest/v3/clusters/110894/

1982-050

Today we learn from the Court that a State runs afoul of the First Amendment proscription of laws "abridging the freedom of speech, or of the press" where the State structures its taxing system to the advantage of newspapers. This seems very much akin to protecting something so overzealously that in the end it is smothered. While the Court purports to rely on the intent of the "Framers of the First Amendment," I believe it safe to assume that in 1791 "abridge" meant the same thing it means today: to diminish or curtail. Not until the Court's decision in this case, nearly two centuries after adoption of the First Amendment, has it been read to prohibit activities which in no way diminish or curtail the freedoms it protects. I agree with the Court that the First Amendment does not per se prevent the State of Minnesota from regulating the press even though such regulation imposes an economic burden. It is evident from the numerous cases relied on by the *597 Court, which I need not repeat here, that this principle has been long settled. Ante, at 581. I further agree with the Court that application of general sales and use taxes to the press would be sanctioned under this line of cases. Ante, at 586-587, n. 9. Therefore, I also agree with the Court to the extent it holds that any constitutional attack on the Minnesota scheme must be aimed at the classifications used in that taxing scheme. Ante, at 583. But it is at this point that I part company with my colleagues. The Court recognizes in several parts of its opinion that the State of Minnesota could avoid constitutional problems by imposing on newspapers the 4% sales tax that it imposes on other retailers. Ante, at 586-590, and nn. 9, 13. Rather than impose such a tax, however, the Minnesota Legislature decided to provide newspapers with an exemption from the sales tax and impose a 4% use tax on ink and paper; thus, while both taxes are part of one "system of sales and use taxes," 314 N.W.2d 201, 203 (1981), newspapers are classified differently within that system.[*] The problem the Court finds too difficult to deal with is whether this difference in treatment results in a significant burden on newspapers. The record reveals that in 1974 the Minneapolis Star & Tribune had an average daily circulation of 489,345 copies. Id., at 203-204, nn. 4 and 5. Using the price we were informed of at argument of 25¢ per copy, see Tr. of Oral Arg. 46, gross sales revenue for the year would be $38,168,910. The Sunday circulation for 1974 was 640,756; even assuming that it did not sell for more than the daily paper, gross sales revenue for the year would be at least $8,329,828. Thus, total sales revenues in 1974 would be $46,498,738. Had a 4% sales tax *598 been imposed, the Minneapolis Star & Tribune would have been liable for $1,859,950 in 1974. The same "complexities of factual economic proof" can be analyzed for 1975. Daily circulation was 481,789; at 25¢ per copy, gross sales revenue for the year would be $37,579,542. The Sunday circulation for 1975 was 619,154; at 25¢ per copy, gross sales revenue for the year would be $8,049,002. Total sales revenues in 1975 would be $45,628,544; at a 4% rate, the sales tax for 1975 would be $1,825,142. Therefore, had the sales tax been imposed, as the Court agrees would have been permissible, the Minneapolis Star & Tribune's liability for 1974 and 1975 would have been $3,685,092. The record further indicates that the Minneapolis Star & Tribune paid $608,634 in use taxes in 1974 and $636,113 in 1975 — a total liability of $1,244,747. See 314 N.W.2d, at 203-204, nn. 4 and 5. We need no expert testimony from modern day Euclids or Einsteins to determine that the $1,224,747 paid in use taxes is significantly less burdensome than the $3,685,092 that could have been levied by a sales tax. A fortiori, the Minnesota taxing scheme which singles out newspapers for "differential treatment" has benefited, not burdened, the "freedom of speech, [and] of the press." Ignoring these calculations, the Court concludes that "differential treatment" alone in Minnesota's sales and use tax scheme requires that the statutes be found "presumptively unconstitutional" and declared invalid "unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation." Ante, at 585. The "differential treatment" standard that the Court has conjured up is unprecedented and unwarranted. To my knowledge this Court has never subjected governmental action to the most stringent constitutional review solely on the basis of "differential treatment" of particular groups. The case relied on by the Court, Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972), certainly does not stand for this proposition. In Mosley all picketing except "peaceful picketing" was prohibited within a particular public area. *599 Thus, "differential treatment" was not the key to the Court's decision; rather the essential fact was that unless a person was considered a "peaceful picketer" his speech through this form of expression would be totally abridged within the area. Of course, all governmentally created classifications must have some "rational basis." See Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949). The fact that they have been enacted by a presumptively rational legislature, however, arms them with a presumption of rationality. We have shown the greatest deference to state legislatures in devising their taxing schemes. As we said in Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959): "The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. . . . The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. [Citations omitted.] `To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our Government . . . .' " Id., at 526-527 (quoting Ohio Oil Co. v. Conway, 281 U.S. 146, 159 (1930)). See also Kahn v. Shevin, 416 U.S. 351 (1974); Independent Warehouses, Inc. v. Scheele, 331 U.S. 70 (1947); Madden v. Kentucky, 309 U.S. 83 (1940); Fox v. Standard Oil Co. of New Jersey, 294 U.S. 87 (1935); New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938). *600 Where the State devises classifications that infringe on the fundamental guarantees protected by the Constitution the Court has demanded more of the State in justifying its action. But there is no infringement, and thus the Court has never required more, unless the State's classifications significantly burden these specially protected rights. As we said in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 (1976) (per curiam) (emphasis added), "equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right. . . ." See also California Medical Assn. v. FEC, 453 U.S. 182 (1981); Maher v. Roe, 432 U.S. 464 (1977); Storer v. Brown, 415 U.S. 724 (1974); American Party of Texas v. White, 415 U.S. 767 (1974); San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). To state it in terms of the freedoms at issue here, no First Amendment issue is raised unless First Amendment rights have been infringed; for if there has been no infringement, then there has been no "abridgment" of those guarantees. See Branzburg v. Hayes, 408 U.S. 665 (1972). Today the Court departs from this rule, refusing to look at the record and determine whether the classifications in the Minnesota use and sales tax statutes significantly burden the First Amendment rights of appellant and its fellow newspapers. The Court offers as an explanation for this failure the self-reproaching conclusion that "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation. The complexities of factual economic proof always present a certain potential for error, and courts have little familiarity with the process of evaluating the relative economic burden of taxes. In sum, the possibility of error inherent in the proposed rule poses too great a threat to concerns at the heart of the First Amendment, and we cannot tolerate that possibility. Minnesota, *601 therefore, has offered no adequate justification for the special treatment of newspapers." Ante, at 589-590 (footnotes omitted). Considering the complexity of issues this Court resolves each Term, this admonition as a general rule is difficult to understand. Considering the specifics of this case, this confession of inability is incomprehensible. Wisely not relying solely on its inability to weigh the burdens of the Minnesota tax scheme, the Court also says that even if the resultant burden on the press is lighter than on others "the very selection of the press for special treatment threatens the press not only with the current differential treatment, but also with the possibility of subsequent differentially more burdensome treatment. Thus, even without actually imposing an extra burden on the press, the government might be able to achieve censorial effects, for `[t]he threat of sanctions may deter [the] exercise [of First Amendment rights] almost as potently as the actual application of sanctions.' " Ante, at 588. Surely the Court does not mean what it seems to say. The Court should be well aware from its discussion of Grosjean v. American Press Co., 297 U.S. 233 (1936), that this Court is quite capable of dealing with changes in state taxing laws which are intended to penalize newspapers. As Justice Holmes aptly put it: "[T]his Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits." Panhandle Oil Co. v. Knox, 277 U.S. 218, 223 (1928) (dissenting opinion). Furthermore, the Court itself intimates that if the State had employed "the same method of taxation but applied a lower rate to the press, so that there could be no doubt that the legislature was not singling out the press to bear a more burdensome *602 tax" the taxing scheme would be constitutionally permissible. Ante, at 590, n. 13. This obviously has the same potential for "the threat of sanctions," because the legislature could at any time raise the taxes to the higher rate. Likewise, the newspapers' absolute exemption from the sales tax, which the Court acknowledges is used by many other States, would be subject to the same attack; the exemption could be taken away. The State is required to show that its taxing scheme is rational. But in this case that showing can be made easily. The Court states that "[t]he court below speculated that the State might have been concerned that collection of a [sales] tax on such small transactions would be impractical." Ante, at 587. But the Court finds this argument "unpersuasive," because "sales of other low-priced goods" are subject to the sales tax. Ibid. I disagree. There must be few such inexpensive items sold in Minnesota in the volume of newspaper sales. Minneapolis Star & Tribune alone, as noted above, sold approximately 489,345 papers every weekday in 1974 and sold another 640,756 papers every Sunday. In 1975 it had a daily circulation of 481,789 and a Sunday circulation of 619,154. Further, newspapers are commonly sold in a different way than other goods. The legislature could have concluded that paperboys, corner newsstands, and vending machines provide an unreliable and unsuitable means for collection of a sales tax. Must everyone buying a paper put 26¢ in the vending machine rather than 25¢; or should the price of a paper be raised to 30¢, giving the paper 4¢ more profit; or should the price be kept at 25¢ with the paper absorbing the tax? In summary, so long as the State can find another way to collect revenue from the newspapers, imposing a sales tax on newspapers would be to no one's advantage; not the newspaper and its distributors who would have to collect the tax, not the State who would have to enforce collection, and not the consumer who would have to pay for the paper in odd amounts. The reasonable alternative Minnesota chose was to impose the use tax on ink and paper. "There is no reason *603 to believe that this legislative choice is insufficiently tailored to achieve the goal of raising revenue or that it burdens the first amendment in any way whatsoever." 314 N.W.2d, at 207. Cf. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981). The Court finds in very summary fashion that the exemption newspapers receive for the first $100,000 of ink and paper used also violates the First Amendment because the result is that only a few of the newspapers actually pay a use tax. I cannot agree. As explained by the Minnesota Supreme Court, the exemption is in effect a $4,000 credit which benefits all newspapers. 314 N.W.2d, at 203. Minneapolis Star & Tribune was benefited to the amount of $16,000 in the two years in question; $4,000 each year for its morning paper and $4,000 each year for its evening paper. Ibid. Absent any improper motive on the part of the Minnesota Legislature in drawing the limits of this exemption, it cannot be construed as violating the First Amendment. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 194 (1946). Cf. Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946). The Minnesota Supreme Court specifically found that the exemption was not a "deliberate and calculated device" designed with an illicit purpose. 314 N.W.2d, at 208. There is nothing in the record which would cast doubt on this conclusion. The Minnesota court further explained: "[I]t is necessary for the legislature to construct economically sound taxes in order to raise revenue. In order to do so, the legislature must classify or grant exemptions to insure that the burden upon the taxpayer in paying the tax or upon the state in collecting the tax does not outweigh the benefit of the revenues to the state. `Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden.' Madden v. Kentucky, 309 U.S. 83, 88 (1940)." Id., at 209-210. *604 There is no reason to conclude that the State, in drafting the $4,000 credit, acted other than reasonably and rationally to fit its sales and use tax scheme to its own local needs and usages. To collect from newspapers their fair share of taxes under the sales and use tax scheme and at the same time avoid abridging the freedoms of speech and press, the Court holds today that Minnesota must subject newspapers to millions of additional dollars in sales tax liability. Certainly this is a hollow victory for the newspapers, and I seriously doubt the Court's conclusion that this result would have been intended by the "Framers of the First Amendment." For the reasons set forth above, I would affirm the judgment of the Minnesota Supreme Court.

Today we learn from the Court that a State runs afoul of the First Amendment proscription of laws "abridging the freedom of speech, or of the press" where the State structures its taxing system to the advantage of newspapers. This seems very much akin to protecting something so overzealously that in the end it is smothered. While the Court purports to rely on the intent of the "Framers of the First Amendment," I believe it safe to assume that in 1791 "abridge" meant the same thing it means today: to diminish or curtail. Not until the Court's decision in this case, nearly two centuries after adoption of the First Amendment, has it been read to prohibit activities which in no way diminish or curtail the freedoms it protects. I agree with the Court that the First Amendment does not per se prevent the State of Minnesota from regulating the press even though such regulation imposes an economic burden. It is evident from the numerous cases relied on by the *597 Court, which I need not repeat here, that this principle has been long settled. Ante, at 581. I further agree with the Court that application of general sales and use taxes to the press would be sanctioned under this line of cases. Ante, at 586-587, n. 9. Therefore, I also agree with the Court to the extent it holds that any constitutional attack on the Minnesota scheme must be aimed at the classifications used in that taxing scheme. Ante, at 583. But it is at this point that I part company with my colleagues. The Court recognizes in several parts of its opinion that the State of Minnesota could avoid constitutional problems by imposing on newspapers the 4% sales tax that it imposes on other retailers. Ante, at 586-590, and nn. 9, 13. Rather than impose such a tax, however, the Minnesota Legislature decided to provide newspapers with an exemption from the sales tax and impose a 4% use tax on ink and paper; thus, while both taxes are part of one "system of sales and use taxes," newspapers are classified differently within that system.[*] The problem the Court finds too difficult to deal with is whether this difference in treatment results in a significant burden on newspapers. The record reveals that in 1974 the Minneapolis Star & Tribune had an average daily circulation of 489,345 copies. at -204, nn. 4 and 5. Using the price we were informed of at argument of 25¢ per copy, see Tr. of Oral Arg. 46, gross sales revenue for the year would be $38,168,910. The Sunday circulation for 1974 was 640,756; even assuming that it did not sell for more than the daily paper, gross sales revenue for the year would be at least $8,329,828. Thus, total sales revenues in 1974 would be $46,498,738. Had a 4% sales tax *598 been imposed, the Minneapolis Star & Tribune would have been liable for $1,859,950 in 1974. The same "complexities of factual economic proof" can be analyzed for 1975. Daily circulation was 481,789; at 25¢ per copy, gross sales revenue for the year would be $37,579,542. The Sunday circulation for 1975 was 619,154; at 25¢ per copy, gross sales revenue for the year would be $8,049,002. Total sales revenues in 1975 would be $45,628,544; at a 4% rate, the sales tax for 1975 would be $1,825,142. Therefore, had the sales tax been imposed, as the Court agrees would have been permissible, the Minneapolis Star & Tribune's liability for 1974 and 1975 would have been $3,685,092. The record further indicates that the Minneapolis Star & Tribune paid $608,634 in use taxes in 1974 and $636,113 in 1975 — a total liability of $1,244,747. See 314 N.W.2d, at -204, nn. 4 and 5. We need no expert testimony from modern day Euclids or Einsteins to determine that the $1,224,747 paid in use taxes is significantly less burdensome than the $3,685,092 that could have been levied by a sales tax. A fortiori, the Minnesota taxing scheme which singles out newspapers for "differential treatment" has benefited, not burdened, the "freedom of speech, [and] of the press." Ignoring these calculations, the Court concludes that "differential treatment" alone in Minnesota's sales and use tax scheme requires that the statutes be found "presumptively unconstitutional" and declared invalid "unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation." Ante, at 585. The "differential treatment" standard that the Court has conjured up is unprecedented and unwarranted. To my knowledge this Court has never subjected governmental action to the most stringent constitutional review solely on the basis of "differential treatment" of particular groups. The case relied on by the Court, Police Department of certainly does not stand for this proposition. In Mosley all picketing except "peaceful picketing" was prohibited within a particular public area. *599 Thus, "differential treatment" was not the key to the Court's decision; rather the essential fact was that unless a person was considered a "peaceful picketer" his speech through this form of expression would be totally abridged within the area. Of course, all governmentally created classifications must have some "rational basis." See ; Railway Express Agency, The fact that they have been enacted by a presumptively rational legislature, however, arms them with a presumption of rationality. We have shown the greatest deference to state legislatures in devising their taxing schemes. As we said in Allied Stores of Ohio, : "The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. [Citations omitted.] `To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our Government' " ). See also ; Independent Warehouses, ; ; ; New York Rapid Transit *600 Where the State devises classifications that infringe on the fundamental guarantees protected by the Constitution the Court has demanded more of the State in justifying its action. But there is no infringement, and thus the Court has never required more, unless the State's classifications significantly burden these specially protected rights. As we said in Massachusetts Board of (emphasis added), "equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right." See also California Medical ; ; ; American Party of ; San Antonio Independent School To state it in terms of the freedoms at issue here, no First Amendment issue is raised unless First Amendment rights have been infringed; for if there has been no infringement, then there has been no "abridgment" of those guarantees. See Today the Court departs from this rule, refusing to look at the record and determine whether the classifications in the Minnesota use and sales tax statutes significantly burden the First Amendment rights of appellant and its fellow newspapers. The Court offers as an explanation for this failure the self-reproaching conclusion that "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation. The complexities of factual economic proof always present a certain potential for error, and courts have little familiarity with the process of evaluating the relative economic burden of taxes. In sum, the possibility of error inherent in the proposed rule poses too great a threat to concerns at the heart of the First Amendment, and we cannot tolerate that possibility. Minnesota, *601 therefore, has offered no adequate justification for the special treatment of newspapers." Ante, at 589-590 (footnotes omitted). Considering the complexity of issues this Court resolves each Term, this admonition as a general rule is difficult to understand. Considering the specifics of this case, this confession of inability is incomprehensible. Wisely not relying solely on its inability to weigh the burdens of the Minnesota tax scheme, the Court also says that even if the resultant burden on the press is lighter than on others "the very selection of the press for special treatment threatens the press not only with the current differential treatment, but also with the possibility of subsequent differentially more burdensome treatment. Thus, even without actually imposing an extra burden on the press, the government might be able to achieve censorial effects, for `[t]he threat of sanctions may deter [the] exercise [of First Amendment rights] almost as potently as the actual application of sanctions.' " Ante, at 5. Surely the Court does not mean what it seems to say. The Court should be well aware from its discussion of that this Court is quite capable of dealing with changes in state taxing laws which are intended to penalize newspapers. As Justice Holmes aptly put it: "[T]his Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits." Panhandle Oil Furthermore, the Court itself intimates that if the State had employed "the same method of taxation but applied a lower rate to the press, so that there could be no doubt that the legislature was not singling out the press to bear a more burdensome *602 tax" the taxing scheme would be constitutionally permissible. Ante, at 590, n. 13. This obviously has the same potential for "the threat of sanctions," because the legislature could at any time raise the taxes to the higher rate. Likewise, the newspapers' absolute exemption from the sales tax, which the Court acknowledges is used by many other States, would be subject to the same attack; the exemption could be taken away. The State is required to show that its taxing scheme is rational. But in this case that showing can be made easily. The Court states that "[t]he court below speculated that the State might have been concerned that collection of a [sales] tax on such small transactions would be impractical." Ante, at 587. But the Court finds this argument "unpersuasive," because "sales of other low-priced goods" are subject to the sales tax. I disagree. There must be few such inexpensive items sold in Minnesota in the volume of newspaper sales. Minneapolis Star & Tribune alone, as noted above, sold approximately 489,345 papers every weekday in 1974 and sold another 640,756 papers every Sunday. In 1975 it had a daily circulation of 481,789 and a Sunday circulation of 619,154. Further, newspapers are commonly sold in a different way than other goods. The legislature could have concluded that paperboys, corner newsstands, and vending machines provide an unreliable and unsuitable means for collection of a sales tax. Must everyone buying a paper put 26¢ in the vending machine rather than 25¢; or should the price of a paper be raised to 30¢, giving the paper 4¢ more profit; or should the price be kept at 25¢ with the paper absorbing the tax? In summary, so long as the State can find another way to collect revenue from the newspapers, imposing a sales tax on newspapers would be to no one's advantage; not the newspaper and its distributors who would have to collect the tax, not the State who would have to enforce collection, and not the consumer who would have to pay for the paper in odd amounts. The reasonable alternative Minnesota chose was to impose the use tax on ink and paper. "There is no reason *603 to believe that this legislative choice is insufficiently tailored to achieve the goal of raising revenue or that it burdens the first amendment in any way whatsoever." Cf. The Court finds in very summary fashion that the exemption newspapers receive for the first $100,000 of ink and paper used also violates the First Amendment because the result is that only a few of the newspapers actually pay a use tax. I cannot agree. As explained by the Minnesota Supreme Court, the exemption is in effect a $4,000 credit which benefits all newspapers. 314 N.W.2d, at Minneapolis Star & Tribune was benefited to the amount of $16,000 in the two years in question; $4,000 each year for its morning paper and $4,000 each year for its evening paper. Absent any improper motive on the part of the Minnesota Legislature in drawing the limits of this exemption, it cannot be construed as violating the First Amendment. See Oklahoma Press Publishing Cf. The Minnesota Supreme Court specifically found that the exemption was not a "deliberate and calculated device" designed with an illicit There is nothing in the record which would cast doubt on this conclusion. The Minnesota court further explained: "[I]t is necessary for the legislature to construct economically sound taxes in order to raise revenue. In order to do so, the legislature must classify or grant exemptions to insure that the burden upon the taxpayer in paying the tax or upon the state in collecting the tax does not outweigh the benefit of the revenues to the state. `Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden.'" *604 There is no reason to conclude that the State, in drafting the $4,000 credit, acted other than reasonably and rationally to fit its sales and use tax scheme to its own local needs and usages. To collect from newspapers their fair share of taxes under the sales and use tax scheme and at the same time avoid abridging the freedoms of speech and press, the Court holds today that Minnesota must subject newspapers to millions of additional dollars in sales tax liability. Certainly this is a hollow victory for the newspapers, and I seriously doubt the Court's conclusion that this result would have been intended by the "Framers of the First Amendment." For the reasons set forth above, I would affirm the judgment of the Minnesota Supreme Court.

Justice O'Connor

majority

Hagen v. Utah

https://www.courtlistener.com/opinion/112929/hagen-v-utah/

https://www.courtlistener.com/api/rest/v3/clusters/112929/

1993-022

In this case we decide whether the Uintah Indian Reservation was diminished by Congress when it was opened to non-Indian settlers at the turn of the century. If the reservation has been diminished, then the town of Myton, Utah, which lies on opened lands within the historical boundaries of the reservation, is not in "Indian country," see 18 U.S. C. *402 § 1151, and the Utah state courts properly exercised criminal jurisdiction over petitioner, an Indian who committed a crime in Myton. I On October 3, 1861, President Lincoln reserved about 2 million acres of land in the Territory of Utah for Indian settlement. Executive Order No. 38-1, reprinted in 1 C. Kappler, Indian Affairs: Laws and Treaties 900 (1904). Congress confirmed the President's action in 1864, creating the Uintah Valley Reservation. Act of May 5, 1864, ch. 77, 13 Stat. 63. According to the 1864 Act, the lands were "set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same." Ibid. The present-day Ute Indian Tribe includes the descendants of the Indians who settled on the Uintah Reservation. In the latter part of the 19th century, federal Indian policy changed. See F. Cohen, Handbook of Federal Indian Law 127-139 (1982 ed.). Indians were no longer to inhabit communally owned reservations, but instead were to be given individual parcels of land; any remaining lands were to be opened for settlement by non-Indians. The General Allotment Act, Act of Feb. 8, 1887, ch. 119, 24 Stat. 388, granted the President authority "to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to [non-Indian] settlers, with the proceeds of these sales being dedicated to the Indians' benefit." DeCoteau v. District County Court for Tenth Judicial District, 420 U.S. 425, 432 (1975). Pursuant to the General Allotment Act, Congress in 1894 directed the President to appoint a commission to negotiate with the Indians for the allotment of Uintah Reservation lands and the "relinquishment to the United States" of all unallotted lands. Act of Aug. 15, 1894, ch. 290, § 22, 28 Stat. 337. That effort did not succeed, and in 1898 Congress directed the President to appoint another commission to negotiate *403 an agreement for the allotment of Uintah Reservation lands and the "cession" of unallotted lands to the United States. Act of June 4, 1898, ch. 376, 30 Stat. 429. The Indians resisted those efforts as well. Various bills that would have opened the reservation unilaterally (i. e., without the consent of the Indians) were subsequently introduced in the Senate but were not enacted into law. See Leasing of Indian Lands, Hearings before the Senate Committee on Indian Affairs, S. Doc. No. 212, 57th Cong., 1st Sess., 3 (1902). In 1902, Congress passed an Act which provided that if a majority of the adult male members of the Uintah and White River Indians consented, the Secretary of the Interior should make allotments by October 1, 1903, out of the Uintah Reservation. Act of May 27, 1902, ch. 888, 32 Stat. 263.[1] The allotments under the 1902 Act were to be 80 acres for each head of a family and 40 acres for each other member of *404 the Tribes. The Act also provided that when the deadline for allotments passed, "all the unallotted lands within said reservation shall be restored to the public domain" and subject to homesteading at $1.25 per acre. Ibid. The proceeds from the sale of lands restored to the public domain were to be used for the benefit of the Indians. A month after the passage of the 1902 Act, Congress directed the Secretary of the Interior to set apart sufficient land to serve the grazing needs of the Indians remaining on the reservation. J. Res. 31, 57th Cong., 1st Sess. (1902), 32 Stat. 744.[2] The resolution clarified that $70,000 appropriated by the 1902 Act was to be paid to the Indians "without awaiting their action upon the proposed allotment in severalty of lands in that reservation and the restoration of the surplus lands to the public domain." Id., at 745. In January 1903, this Court held that Congress can unilaterally alter reservation boundaries. Lone Wolf v. Hitchcock, 187 U.S. 553, 567-568. On Mar. 3, 1903, Congress directed the Secretary to allot the Uintah lands unilaterally if the Indians did not give their consent by June 1 of that year, and deferred the opening of the unallotted lands "as provided by the [1902 Act]" until October 1, 1904. Act of Mar. 3, 1903, *405 ch. 994, 32 Stat. 998.[3] The 1903 Act also specified that the grazing lands specified in the 1902 Joint Resolution would be limited to 250,000 acres south of the Strawberry River. In 1904, Congress passed another statute that appropriated additional funds to "carry out the purposes" of the 1902 Act, and deferred the opening date "as provided by the [1902 and 1903 Acts]" until Mar. 10, 1905. Act of Apr. 21, 1904, ch. 1402, 33 Stat. 207.[4] *406 In 1905, Congress again deferred the opening date, this time until September 1, 1905, unless the President were to establish an earlier date. Act of Mar. 3, 1905, ch. 1479, 33 Stat. 1069.[5] The 1905 Act repealed the provision of the 1903 Act limiting the grazing lands to areas south of the Strawberry River. The Act further provided: "[T]he manner of opening [reservation] lands for settlement and entry, and for disposing of the same, shall be as follows: That the said unallotted lands . . . shall be *407 disposed of under the general provisions of the homestead and town-site laws of the United States, and shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof." Ibid. All lands remaining open but unsettled after five years were to be sold for cash, in parcels up to 640 acres. The "proceeds of the sale of such lands" were to be "applied as provided in the [1902 Act] and the Acts amendatory thereof and supplemental thereto." Id., at 1070. The Government once again failed to obtain the consent of the Indians. On July 14, 1905, President Roosevelt issued the following Proclamation: "Whereas it was provided by the [1902 Act], among other things, that on October first, 1903, the unallotted lands in the Uintah Indian Reservation, in the State of Utah, `shall be restored to the public domain: Provided, That persons entering any of said lands under the homestead laws shall pay therefor at the rate of [$1.25] per acre.' "And, whereas, the time for the opening of said unallotted lands was extended to October 1, 1904, by the [1903 Act], and was extended to March 10, 1905, by the [1904 Act], and was again extended to not later than September 1, 1905, by the [1905 Act], which last named act provided, among other things: ['That the said unallotted lands . . . shall be disposed of under the general provisions of the homestead and townsite laws of the United States. . . .'] "Now, therefore, I, Theodore Roosevelt, President of the United States of America, by virtue of the power in me vested by said Acts of Congress, do hereby declare and make known that all the unallotted lands in said *408 reservation . . . will on and after the 28th day of August, 1905, in the manner hereinafter prescribed, and not otherwise, be opened to entry, settlement and disposition under the general provisions of the homestead and townsite laws of the United States." 34 Stat. 3119-3120. The Proclamation went on to detail a lottery scheme for the allocation of the lands to settlers. II In 1989, petitioner was charged in Utah state court with distribution of a controlled substance. The offense occurred in the town of Myton, which was established within the original boundaries of the Uintah Indian Reservation when the reservation was opened to non-Indian settlement in 1905. Petitioner initially pleaded guilty, but subsequently filed a motion to withdraw his guilty plea. The basis of the motion was that the Utah state courts lacked jurisdiction over petitioner because he was an Indian and the crime had been committed in Indian country. The trial court denied the motion, finding that petitioner is not an Indian. The state appellate court reversed. It concluded that petitioner is an Indian, a determination that is not at issue in this Court. The court also held that Myton is in Indian country, relying on Ute Indian Tribe v. Utah, 773 F.2d 1087 (1985) (en banc), cert. denied, 479 U.S. 994 (1986), in which the Tenth Circuit held that the Uintah Indian Reservation was not diminished when it was opened to settlement in 1905. Because Congress has not granted criminal jurisdiction to the State of Utah to try crimes committed by Indians in Indian country, cf. Negonsott v. Samuels, 507 U.S. 99, 103 (1993); Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 471-474 (1979), the appellate court held that the state courts lacked jurisdiction over petitioner. The court accordingly vacated petitioner's conviction. *409 The Utah Supreme Court reversed on the authority of State v. Perank, 858 P.2d 927 (1992), in which the court had held (on the same day as the decision in petitioner's case) that the reservation had been diminished and that Myton was outside its boundaries, and thus that petitioner's offense was subject to state criminal jurisdiction. 858 P.2d 925 (1992); see Solem v. Bartlett, 465 U.S. 463, 467 (1984) ("As a doctrinal matter, the States have jurisdiction over unallotted opened lands if the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries"). The court accordingly reinstated petitioner's conviction. We granted certiorari, 507 U.S. 1028 (1993), to resolve the direct conflict between these decisions of the Tenth Circuit and the Utah Supreme Court on the question whether the Uintah Reservation has been diminished. III We first address a threshold question: whether the State of Utah, which was a party to the Tenth Circuit proceedings, should be collaterally estopped from relitigating the reservation boundaries. In Perank, the Utah Supreme Court noted that "neither Perank, the Department of Justice, nor the Tribe suggests that the Tenth Circuit's en banc decision in Ute Indian Tribe has res judicata effect in this case." 858 P.2d, at 931. Because "[r]es judicata is an affirmative defense in both criminal and civil cases and therefore is waivable," id., at 931, n. 3, the court went on to consider the merits of the State's claim. Petitioner's only recourse would have been to attack the judgment in Perank on the ground that the Utah Supreme Court failed to give effect sua sponte to the prior determination in Ute Indian Tribe that the reservation had not been diminished. Although that issue is one of federal law, see Restatement (Second) of Judgments § 86 (1982), it was not presented in the petition for a writ of certiorari. It therefore *410 is not properly before us. Yee v. Escondido, 503 U.S. 519, 535-536 (1992); see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U.S. 27 (1993) (per curiam). Moreover, petitioner disavowed the collateral estoppel argument at the petition stage, in response to a brief filed by the Ute Indian Tribe: "The question presented in the petition was whether the reservation had been diminished by acts of congress. [This Court's Rule 14.1(a)] does not appear to allow different issues to be raised. The Ute Indian Tribe argues that the Supreme Court of the State of Utah should have reached a different decision in [Perank] based on the doctrine of collateral estoppel . . . . Regardless of the opinion held by the Ute Indian Tribe of the Perank decision, the decision has been made and is controlling in petitioner's case." Supplemental Brief for Petitioner 2 (filed Dec. 2, 1992) (emphasis added). Because we see no reason to consider an argument that petitioner not only failed to raise, but also expressly refused to rely upon in seeking a writ of certiorari, we turn to the merits. IV In Solem v. Bartlett, we recognized: "It is settled law that some surplus land Acts diminished reservations, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau v. District County Court, 420 U.S. 425 (1975), and other surplus land Acts did not, see, e. g., Mattz v. Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent, 368 U.S. 351 (1962). The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage." 465 U.S., at 469. In determining whether a reservation has been diminished, "[o]ur precedents in the area have established a fairly clean *411 analytical structure," id., at 470, directing us to look to three factors. The most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands. Ibid. We have also considered the historical context surrounding the passage of the surplus land Acts, although we have been careful to distinguish between evidence of the contemporaneous understanding of the particular Act and matters occurring subsequent to the Act's passage. Id., at 471. Finally, "[o]n a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reservation." Ibid. Throughout the inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment. Id., at 470, 472; see also South Dakota v. Bourland, 508 U.S. 679, 687 (1993) ("`[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit'" (quoting County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992) (internal quotation marks omitted))). The Solicitor General, appearing as amicus in support of petitioner, argues that our cases establish a "clear-statement rule," pursuant to which a finding of diminishment would require both explicit language of cession or other language evidencing the surrender of tribal interests and an unconditional commitment from Congress to compensate the Indians. See Brief for United States as Amicus Curiae 7-8. We disagree. First, although the statutory language must "establis[h] an express congressional purpose to diminish," Solem, 465 U. S., at 475, we have never required any particular form of words before finding diminishment, see Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588, and n. 4 (1977). Second, we noted in Solem that a statutory expression of congressional intent to diminish, coupled with the provision of a sum certain payment, would establish a nearly conclusive presumption that the reservation had been diminished. 465 *412 U. S., at 470-471. While the provision for definite payment can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. In fact, the statutes at issue in Rosebud, which we held to have effected a diminishment, did not provide for the payment of a sum certain to the Indians. See 430 U.S., at 596, and n. 18. We thus decline to abandon our traditional approach to diminishment cases, which requires us to examine all the circumstances surrounding the opening of a reservation. A The operative language of the 1902 Act provided for allocations of reservation land to Indians, and that "all the unallotted lands within said reservation shall be restored to the public domain." 32 Stat. 263 (emphasis added). The public domain was the land owned by the Government, mostly in the West, that was "available for sale, entry, and settlement under the homestead laws, or other disposition under the general body of land laws." E. Peffer, The Closing of the Public Domain 6 (1951). "[F]rom an early period in the history of the government it [was] the practice of the President to order, from time to time, . . . parcels of land belonging to the United States to be reserved from sale and set apart for public uses." Grisar v. McDowell, 6 Wall. 363, 381 (1868). This power of reservation was exercised for various purposes, including Indian settlement, bird preservation, and military installations, "when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain." United States v. Midwest Oil Co., 236 U.S. 459, 471 (1915). It follows that when lands so reserved were "restored" to the public domain—i. e., once again opened to sale or settlement—their previous public use was extinguished. See Sioux Tribe v. United States, 316 U.S. 317, 323 (1942) (President ordered lands previously reserved for Indian use "`restored to the public domain[,] . . . the same being no longer *413 needed for the purpose for which they were withdrawn from sale and settlement'"); United States v. Pelican, 232 U.S. 442, 445-446 (1914). Statutes of the period indicate that Congress considered Indian reservations as separate from the public domain. See, e. g., Act of June 25, 1910, § 6, 36 Stat. 857 (criminalizing forest fires started "upon the public domain, or upon any Indian reservation") (quoted in United States v. Alford, 274 U.S. 264, 266-267 (1927)). Likewise, in DeCoteau we emphasized the distinction between reservation and public domain lands: "That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned . . . . The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the `public domain.'" 420 U.S., at 446 (emphasis added). In Solem, the Court held that an Act which authorized the Secretary of the Interior to "`sell and dispose of'" unallotted reservation lands merely opened the reservation to non-Indian settlement and did not diminish it. 465 U.S., at 472-474. Elsewhere in the same statute, Congress had granted the Indians permission to harvest timber on the opened lands "`as long as the lands remain part of the public domain.'" Id., at 475. We recognized that this reference to the public domain "support[ed]" the view that a reservation had been diminished, but that it was "hardly dispositive." Id., at 475. We noted that "even without diminishment, unallotted opened lands could be conceived of as being in the `public domain' inasmuch as they were available for settlement." Id., at 475, n. 17. The Act in Solem, however, did not "restore" the lands to the public domain. More importantly, the reference to the public domain did not appear in the operative language of the statute opening the reservation lands for settlement, which is the relevant point of reference for the diminishment inquiry. Our cases considering operative language of restoration have uniformly equated it with a congressional purpose to terminate reservation status. *414 In Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962), for example, the question was whether the Colville Reservation, in the State of Washington, had been diminished. The Court noted that an 1892 Act which "`vacated and restored to the public domain'" about one-half of the reservation lands had diminished the reservation as to that half. Id., at 354. As to the other half, Congress in 1906 had provided for allotments to the Indians, followed by the sale of mineral lands and entry onto the surplus lands under the homestead laws. This Court held that the 1906 Act did not result in diminishment: "Nowhere in the 1906 Act is there to be found any language similar to that in the 1892 Act expressly vacating the South Half of the reservation and restoring that land to the public domain." Id., at 355. This Court subsequently characterized the 1892 Act at issue in Seymour as an example of Congress' using "clear language of express termination when that result is desired." Mattz, 412 U. S., at 504, n. 22. And in Rosebud, all nine Justices agreed that a statute which "`restored to the public domain'" portions of a reservation would result in diminishment. 430 U.S., at 589, and n. 5; id., at 618 (Marshall, J., dissenting). In light of our precedents, we hold that the restoration of unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status. Thus, the existence of such language in the operative section of a surplus land Act indicates that the Act diminished the reservation. Indeed, we have found only one case in which a Federal Court of Appeals decided that statutory restoration language did not terminate a reservation, Ute Indian Tribe, 773 F. 2d, at 1092, a conclusion the Tenth Circuit has since disavowed as "unexamined and unsupported." Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1400, cert. denied, 498 U.S. 1012 (1990). *415 Until the Ute Indian Tribe litigation in the Tenth Circuit, every court had decided that the unallotted lands were restored to the public domain pursuant to the terms of the 1902 Act, with the 1905 Act simply extending the time for opening and providing for a few details. Hanson v. United States, 153 F.2d 162, 162-163 (CA10 1946); United States v. Boss, 160 F. 132, 133 (Utah 1906); Uintah and White River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 21-23 (1957); Sowards v. Meagher, 108 P. 1112, 1114 (Utah 1910). Petitioner argues, however, that the 1905 Act changed the "manner" in which the lands were to be opened. That Act specified that the homestead and townsite laws would apply, and so superseded the "restore to the public domain" language of the 1902 Act, language that was not repeated in the 1905 Act. We disagree, because the baseline intent to diminish the reservation expressed in the 1902 Act survived the passage of the 1905 Act. Every congressional action subsequent to the 1902 Act referred to that statute. The 1902 Joint Resolution provided an appropriation prior to the restoration of surplus reservation lands to the public domain. 32 Stat. 744. The 1903 and 1904 Acts simply extended the deadline for opening the reservations in order to allow more time for surveying the lands, so that the "purposes" of the 1902 Act could be carried out. 32 Stat. 997; 33 Stat. 207. And the 1905 Act recognized that they were all tied together when it provided that the proceeds of the sale of the unallotted lands "shall be applied as provided in the [1902 Act] and the Acts amendatory thereof and supplementary thereto." 33 Stat. 1070. The Congress that passed the 1905 Act clearly viewed the 1902 statute as the basic legislation upon which subsequent Acts were built. Furthermore, the structure of the statutes requires that the 1905 Act and the 1902 Act be read together. Whereas the 1905 Act provided for the disposition of unallotted lands, it was the 1902 Act that provided for allotments to the Indians. *416 The 1902 Act also established the price for which the unallotted lands were to be sold, and what was to be done with the proceeds of the sales. The 1905 Act did not repeat these essential features of the opening, because they were already spelled out in the 1902 Act. The two statutes—as well as those that came in between—must therefore be read together. Finally, the general rule that repeals by implication are disfavored is especially strong in this case, because the 1905 Act expressly repealed the provision in the 1903 Act concerning the siting of the grazing lands; if Congress had meant to repeal any part of any other previous statute, it could easily have done so. Furthermore, the predicate for finding an implied repeal is not present in this case, because the opening provisions of the two statutes are not inconsistent: The 1902 Act also provided that the unallotted lands restored to the public domain could be sold pursuant to the homestead laws. Other surplus land Acts which we have held to have effected diminishment similarly provided for initial entry under the homestead and townsite laws. See Rosebud, supra, at 608; DeCoteau, 420 U. S., at 442. B Contemporary historical evidence supports our conclusion that Congress intended to diminish the Uintah Reservation. As we have noted, the plain language of the 1902 Act demonstrated the congressional purpose to diminish the Uintah Reservation. Under the 1902 Act, however, the consent of the Indians was required before the reservation could be diminished; that consent was withheld by the Indians living on the reservation. After this Court's Lone Wolf decision in 1903, Congress authorized the Secretary of the Interior to proceed unilaterally. The Acting Commissioner for Indian Affairs in the Department of the Interior directed Indian Inspector James McLaughlin to travel to the Uintah Reservation to "endeavor to obtain [the Indians'] consent to the *417 allotment of lands as provided in the law, and to the restoration of the surplus lands." Letter from A. C. Tonner to James McLaughlin (Apr. 27, 1903), reprinted in S. Doc. No. 159, 58th Cong., 3d Sess., 9 (1905). The Acting Commissioner noted, however, that the effect of the 1903 Act was that "if the [Indians] do not consent to the allotments by the first of June next the allotments are to be made notwithstanding, and the unallotted lands . . . are to be opened to entry" according to the terms of the 1902 Act. Id., at 8-9. Inspector McLaughlin explained the effect of these recent developments to the Indians living on the Reservation: "`By that decision of the Supreme Court, Congress has the legal right to legislate in regard to Indian lands, and Congress has enacted a law which requires you to take your allotments. . . . . . "`You say that [the Reservation boundary] line is very heavy and that the reservation is nailed down upon the border. That is very true as applying to the past many years and up to now, but congress has provided legislation which will pull up the nails which hold down that line and after next year there will be no outside boundary line to this reservation.'" Minutes of Councils Held by James McLaughlin, U. S. Indian Inspector, with the Uintah and White River Ute Indians at Uintah Agency, Utah, from May 18 to May 23, 1903, excerpted in App. to Brief for Respondent 4a-5a (emphasis added). Inspector McLaughlin's picturesque phrase reflects the contemporaneous understanding, by him conveyed to the Indians, that the reservation would be diminished by operation of the 1902 and 1903 Acts notwithstanding the failure of the Indians to give their consent. The Secretary of the Interior informed Congress in February 1904 that the necessary surveying could not be completed before the date set for the opening, and requested *418 that the opening be delayed. Letter from E. A. Hitchcock to the Chairman of the Senate Committee on Indian Affairs (Feb. 6, 1904), reprinted in S. Doc. No. 159, supra, at 17. In the 1904 Act, Congress accordingly extended the time for opening until March 10, 1905, and appropriated additional funds "to enable the Secretary of the Interior to do the necessary surveying" of the reservation lands. 33 Stat. 207. The Secretary of the Interior subsequently informed Congress that a further extension would be necessary because the surveying and allotments could not be completed during the winter. Letter from E. A. Hitchcock to the Chairman of the House Committee on Indian Affairs (Dec. 10, 1904), reprinted in S. Doc. No. 159, supra, at 21. The House of Representatives took up the matter on January 21, 1905. The bill on which debate was held provided that "so much of said lands as will be under the provisions of said acts restored to the public domain shall be open to settlement and entry by proclamation of the President of the United States, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered." H. R. 17474, quoted in 39 Cong. Rec. 1180 (1905). Representative Howell of Utah offered as an amendment "[t]hat for one year immediately following the restoration of said lands to the public domain said lands shall be subject to entry only under the homestead, town-site, and mining laws of the United States." Ibid. Significantly, Representative Howell offered his amendment as an addition to, not a replacement for, the language in the bill that explicitly referred to the lands' restoration to the public domain. He explained: "In the pending bill these lands, when restored to the public domain, are subject to entry under the general land laws of the United States, coupled with such rules and regulations as the President may prescribe. In my humble judgment there should be some provision such as is embodied in my amendment, limiting the lands in the reservation to entry under the homestead, town-site, *419 and mining laws alone for one year from the date of the opening. . . . "Congress should see to it that until such time as those lands easy of access, reclamation, and irrigation are settled by actual home makers the provisions of the homestead law alone shall prevail. This policy is in accord with the dominant sentiment of the time, viz, that the public lands shall be reserved for actual homes for the people." Id., at 1182. Although the amendment was rejected in the House of Representatives, id., at 1186, the Senate substituted the current version of the 1905 Act, which is similar to the amendment offered by Representative Howell but omits the restoration language of the House version. Id., at 3522. In the hearings on the Senate bill, Senator Teller of Colorado had stated that "I am not going to agree to any entry of that land except under the homestead and town-site entries," because "I am not going to consent to any speculators getting public land if I can help it." Indian Appropriation Bill, 1906, Hearings before the Senate Subcommittee of the Committee on Indian Affairs, 58th Cong., 3d Sess., 30 (1905). Thus, although we have no way of knowing for sure why the Senate decided to limit the "manner" of opening, it seems likely that Congress wanted to limit land speculation. That objective is not inconsistent with the restoration of the unallotted lands to the public domain: Once the lands became public, Congress could of course place limitations on their entry, sale, and settlement. The Proclamation whereby President Roosevelt actually opened the reservation to settlement makes clear that the 1905 Act did not repeal the restoration language of the 1902 Act. In that document, the President stated that the 1902 Act provided that the unallotted lands were to be restored to the public domain, that the 1903, 1904, and 1905 Acts extended the time for the opening, and that those lands were *420 now opened for settlement under the homestead laws "by virtue of the power in [him] vested by said Acts of Congress." 34 Stat. 3120 (emphasis added). President Roosevelt thus clearly understood the 1905 Act to incorporate the 1902 Act, and specifically the restoration language. This "unambiguous, contemporaneous, statement, by the Nation's Chief Executive," Rosebud, 430 U. S., at 602, is clear evidence of the understanding at the time that the Uintah Reservation would be diminished by the opening of the unallotted lands to non-Indian settlement. The subsequent history is less illuminating than the contemporaneous evidence. Since 1905, Congress has repeatedly referred to the Uintah Reservation in both the past and present tenses, reinforcing our longstanding observation that "[t]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Philadelphia Nat. Bank, 374 U.S. 321, 348-349 (1963) (internal quotation marks omitted). The District Court in the Ute Indian Tribe case extensively cataloged these congressional references, and we agree with that court's conclusion: "Not only are the references grossly inconsistent when considered together, they . . . are merely passing references in text, not deliberate expressions of informal conclusions about congressional intent in 1905." 521 F. Supp. 1072, 1135 (Utah 1981). Because the textual and contemporaneous evidence of diminishment is clear, however, the confusion in the subsequent legislative record does nothing to alter our conclusion that the Uintah Reservation was diminished. C Finally, our conclusion that the statutory language and history indicate a congressional intent to diminish is not controverted by the subsequent demographics of the Uintah Valley area. We have recognized that "[w]hen an area is predominately populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains *421 Indian country seriously burdens the administration of state and local governments." Solem, 465 U. S., at 471-472, n. 12. Of the original 2 million acres reserved for Indian occupation, approximately 400,000 were opened for non-Indian settlement in 1905. Almost all of the non-Indians live on the opened lands. The current population of the area is approximately 85 percent non-Indian. 1990 Census of Population and Housing, Summary Population and Housing Characteristics: Utah, 1990 CPH-1-46, Table 17, p. 73. The population of the largest city in the area—Roosevelt City, named for the President who opened the reservation for settlement— is about 93 percent non-Indian. Id., Table 3, p. 13. The seat of Ute tribal government is in Fort Duchesne, which is situated on Indian trust lands. By contrast, we found it significant in Solem that the seat of tribal government was located on opened lands. 465 U.S., at 480. The State of Utah exercised jurisdiction over the opened lands from the time the reservation was opened until the Tenth Circuit's Ute Indian Tribe decision. That assumption of authority again stands in sharp contrast to the situation in Solem, where "tribal authorities and Bureau of Indian Affairs personnel took primary responsibility for policing . . . the opened lands during the years following [the opening in] 1908." 465 U.S., at 480. This "jurisdictional history," as well as the current population situation in the Uintah Valley, demonstrates a practical acknowledgment that the Reservation was diminished; a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area. Cf. Rosebud, supra, at 604-605. V We conclude that the Uintah Indian Reservation has been diminished by Congress. Accordingly, the town of Myton, where petitioner committed a crime, is not in Indian country and the Utah courts properly exercised criminal jurisdiction *422 over him. We therefore affirm the judgment of the Utah Supreme Court. So ordered.

In this case we decide whether the Uintah Indian Reservation was diminished by Congress when it was opened to non-Indian settlers at the turn of the century. If the reservation has been diminished, then the town of Myton, Utah, which lies on opened lands within the historical boundaries of the reservation, is not in "Indian country," see 18 U.S. C. *402 1151, and the Utah state courts properly exercised criminal jurisdiction over petitioner, an Indian who committed a crime in Myton. I On October 3, 1861, President Lincoln reserved about 2 million acres of land in the Territory of Utah for Indian settlement. Executive Order No. 38-1, reprinted in 1 C. Kappler, Indian Affairs: Laws and Treaties 900 (1904). Congress confirmed the President's action in 1864, creating the Uintah Valley Reservation. Act of May 5, 1864, ch. 77, According to the 1864 Act, the lands were "set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same." The present-day Ute Indian Tribe includes the descendants of the Indians who settled on the Uintah Reservation. In the latter part of the 19th century, federal Indian policy changed. See F. Cohen, Handbook of Federal Indian Law 127-139 (1982 ed.). Indians were no longer to inhabit communally owned reservations, but instead were to be given individual parcels of land; any remaining lands were to be opened for settlement by non-Indians. The General Allotment Act, Act of Feb. 8, 1887, ch. 119, granted the President authority "to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to [non-Indian] settlers, with the proceeds of these sales being dedicated to the Indians' benef" Pursuant to the General Allotment Act, Congress in 1894 directed the President to appoint a commission to negotiate with the Indians for the allotment of Uintah Reservation lands and the "relinquishment to the United States" of all unallotted Act of Aug. 15, 1894, ch. 290, 22, That effort did not succeed, and in 1898 Congress directed the President to appoint another commission to negotiate *403 an agreement for the allotment of Uintah Reservation lands and the "cession" of unallotted lands to the United States. Act of June 4, 1898, ch. 376, The Indians resisted those efforts as well. Various bills that would have opened the reservation unilaterally (i. e., without the consent of the Indians) were subsequently introduced in the Senate but were not enacted into law. See Leasing of Indian Lands, Hearings before the Senate Committee on Indian Affairs, S. Doc. No. 212, 57th Cong., 1st Sess., 3 (1902). In 1902, Congress passed an Act which provided that if a majority of the adult male members of the Uintah and White River Indians consented, the Secretary of the Interior should make allotments by October 1, 1903, out of the Uintah Reservation. Act of May 27, 1902, ch. 888,[1] The allotments under the 1902 Act were to be 80 acres for each head of a family and 40 acres for each other member of *404 the Tribes. The Act also provided that when the deadline for allotments passed, "all the unallotted lands within said reservation shall be restored to the public domain" and subject to homesteading at $1.25 per acre. The proceeds from the sale of lands restored to the public domain were to be used for the benefit of the Indians. A month after the passage of the 1902 Act, Congress directed the Secretary of the Interior to set apart sufficient land to serve the grazing needs of the Indians remaining on the reservation. J. Res. 31, 57th Cong., 1st Sess. (1902),[2] The resolution clarified that $70,000 appropriated by the 1902 Act was to be paid to the Indians "without awaiting their action upon the proposed allotment in severalty of lands in that reservation and the restoration of the surplus lands to the public domain." In January 1903, this Court held that Congress can unilaterally alter reservation boundaries. Lone On Mar. 3, 1903, Congress directed the Secretary to allot the Uintah lands unilaterally if the Indians did not give their consent by June 1 of that year, and deferred the opening of the unallotted lands "as provided by the [1902 Act]" until October 1, 1904. Act of Mar. 3, 1903, *405 ch. 994,[3] The 1903 Act also specified that the grazing lands specified in the 1902 Joint Resolution would be limited to 250,000 acres south of the Strawberry River. In 1904, Congress passed another statute that appropriated additional funds to "carry out the purposes" of the 1902 Act, and deferred the opening date "as provided by the [1902 and 1903 Acts]" until Mar. 10, 1905. Act of Apr. 21, 1904, ch. 1402,[4] *406 In 1905, Congress again deferred the opening date, this time until September 1, 1905, unless the President were to establish an earlier date. Act of Mar. 3, 1905, ch. 1479,[5] The 1905 Act repealed the provision of the 1903 Act limiting the grazing lands to areas south of the Strawberry River. The Act further provided: "[T]he manner of opening [reservation] lands for settlement and entry, and for disposing of the same, shall be as follows: That the said unallotted lands shall be *407 disposed of under the general provisions of the homestead and town-site laws of the United States, and shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thereof." All lands remaining open but unsettled after five years were to be sold for cash, in parcels up to 640 acres. The "proceeds of the sale of such lands" were to be "applied as provided in the [1902 Act] and the Acts amendatory thereof and supplemental thereto." The Government once again failed to obtain the consent of the Indians. On July 14, 1905, President Roosevelt issued the following Proclamation: "Whereas it was provided by the [1902 Act], among other things, that on October first, 1903, the unallotted lands in the Uintah Indian Reservation, in the State of Utah, `shall be restored to the public domain: Provided, That persons entering any of said lands under the homestead laws shall pay therefor at the rate of [$1.25] per acre.' "And, whereas, the time for the opening of said unallotted lands was extended to October 1, 1904, by the [1903 Act], and was extended to March 10, 1905, by the [1904 Act], and was again extended to not later than September 1, 1905, by the [1905 Act], which last named act provided, among other things: ['That the said unallotted lands shall be disposed of under the general provisions of the homestead and townsite laws of the United States.'] "Now, therefore, I, Theodore Roosevelt, President of the United States of America, by virtue of the power in me vested by said Acts of Congress, do hereby declare and make known that all the unallotted lands in said *408 reservation will on and after the 28th day of August, 1905, in the manner hereinafter prescribed, and not otherwise, be opened to entry, settlement and disposition under the general provisions of the homestead and townsite laws of the United States." -3120. The Proclamation went on to detail a lottery scheme for the allocation of the lands to settlers. II In 1989, petitioner was charged in Utah state court with distribution of a controlled substance. The offense occurred in the town of Myton, which was established within the original boundaries of the Uintah Indian Reservation when the reservation was opened to non-Indian settlement in 1905. Petitioner initially pleaded guilty, but subsequently filed a motion to withdraw his guilty plea. The basis of the motion was that the Utah state courts lacked jurisdiction over petitioner because he was an Indian and the crime had been committed in Indian country. The trial court denied the motion, finding that petitioner is not an Indian. The state appellate court reversed. It concluded that petitioner is an Indian, a determination that is not at issue in this Court. The court also held that Myton is in Indian country, relying on Ute Indian cert. denied, in which the Tenth Circuit held that the Uintah Indian Reservation was not diminished when it was opened to settlement in 1905. Because Congress has not granted criminal jurisdiction to the State of Utah to try crimes committed by Indians in Indian country, cf. ; the appellate court held that the state courts lacked jurisdiction over petitioner. The court accordingly vacated petitioner's conviction. *409 The Utah Supreme Court reversed on the authority of in which the court had held (on the same day as the decision in petitioner's case) that the reservation had been diminished and that Myton was outside its boundaries, and thus that petitioner's offense was subject to state criminal jurisdiction. ; see The court accordingly reinstated petitioner's conviction. We granted certiorari, to resolve the direct conflict between these decisions of the Tenth Circuit and the Utah Supreme Court on the question whether the Uintah Reservation has been diminished. III We first address a threshold question: whether the State of Utah, which was a party to the Tenth Circuit proceedings, should be collaterally estopped from relitigating the reservation boundaries. In Perank, the Utah Supreme Court noted that "neither Perank, the Department of Justice, nor the Tribe suggests that the Tenth Circuit's en banc decision in Ute Indian Tribe has res judicata effect in this case." Because "[r]es judicata is an affirmative defense in both criminal and civil cases and therefore is waivable," the court went on to consider the merits of the State's claim. Petitioner's only recourse would have been to attack the judgment in Perank on the ground that the Utah Supreme Court failed to give effect sua sponte to the prior determination in Ute Indian Tribe that the reservation had not been diminished. Although that issue is one of federal law, see Restatement (Second) of Judgments 86 (1982), it was not presented in the petition for a writ of certiorari. It therefore *410 is not properly before us. ; see Izumi Seimitsu Kogyo Kabushiki Moreover, petitioner disavowed the collateral estoppel argument at the petition stage, in response to a brief filed by the Ute Indian Tribe: "The question presented in the petition was whether the reservation had been diminished by acts of congress. [This Court's Rule 14.1(a)] does not appear to allow different issues to be raised. The Ute Indian Tribe argues that the Supreme Court of the State of Utah should have reached a different decision in [Perank] based on the doctrine of collateral estoppel Regardless of the opinion held by the Ute Indian Tribe of the Perank decision, the decision has been made and is controlling in petitioner's case." Supplemental Brief for Petitioner 2 Because we see no reason to consider an argument that petitioner not only failed to raise, but also expressly refused to rely upon in seeking a writ of certiorari, we turn to the merits. IV In we recognized: "It is settled law that some surplus land Acts diminished reservations, see, e. g., Sioux ; and other surplus land Acts did not, see, e. g., ; The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage." In determining whether a reservation has been diminished, "[o]ur precedents in the area have established a fairly clean *411 analytical structure," directing us to look to three factors. The most probative evidence of diminishment is, of course, the statutory language used to open the Indian We have also considered the historical context surrounding the passage of the surplus land Acts, although we have been careful to distinguish between evidence of the contemporaneous understanding of the particular Act and matters occurring subsequent to the Act's passage. Finally, "[o]n a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reservation." Throughout the inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find 472; see also South )). The Solicitor General, appearing as amicus in support of petitioner, argues that our cases establish a "clear-statement rule," pursuant to which a finding of diminishment would require both explicit language of cession or other language evidencing the surrender of tribal interests and an unconditional commitment from Congress to compensate the Indians. See Brief for United States as Amicus Curiae 7-8. We disagree. First, although the statutory language must "establis[h] an express congressional purpose to diminish," we have never required any particular form of words before finding diminishment, see Sioux Second, we noted in that a statutory expression of congressional intent to diminish, coupled with the provision of a sum certain payment, would establish a nearly conclusive presumption that the reservation had been diminished. 465 *412 U. S., -. While the provision for definite payment can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. In fact, the statutes at issue in which we held to have effected a diminishment, did not provide for the payment of a sum certain to the Indians. See and n. 18. We thus decline to abandon our traditional approach to diminishment cases, which requires us to examine all the circumstances surrounding the opening of a reservation. A The operative language of the 1902 Act provided for allocations of reservation land to Indians, and that "all the unallotted lands within said reservation shall be restored to the public domain." The public domain was the land owned by the Government, mostly in the West, that was "available for sale, entry, and settlement under the homestead laws, or other disposition under the general body of land laws." E. Peffer, The Closing of the Public Domain 6 (1951). "[F]rom an early period in the history of the government it [was] the practice of the President to order, from time to time, parcels of land belonging to the United States to be reserved from sale and set apart for public uses." This power of reservation was exercised for various purposes, including Indian settlement, bird preservation, and military installations, "when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain." United It follows that when lands so reserved were "restored" to the public domain—i. e., once again opened to sale or settlement—their previous public use was extinguished. See Sioux ; United Statutes of the period indicate that Congress considered Indian reservations as separate from the public domain. See, e. g., Act of June 25, 1910, 6, ). Likewise, in we emphasized the distinction between reservation and public domain lands: "That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the `public domain.'" In the Court held that an Act which authorized the Secretary of the Interior to "`sell and dispose of'" unallotted reservation lands merely opened the reservation to non-Indian settlement and did not diminish -474. Elsewhere in the same statute, Congress had granted the Indians permission to harvest timber on the opened lands "`as long as the lands remain part of the public domain.'" We recognized that this reference to the public domain "support[ed]" the view that a reservation had been diminished, but that it was "hardly dispositive." We noted that "even without diminishment, unallotted opened lands could be conceived of as being in the `public domain' inasmuch as they were available for settlement." n. 17. The Act in however, did not "restore" the lands to the public domain. More importantly, the reference to the public domain did not appear in the operative language of the statute opening the reservation lands for settlement, which is the relevant point of reference for the diminishment inquiry. Our cases considering operative language of restoration have uniformly equated it with a congressional purpose to terminate reservation status. *414 In of Wash. State Penitentiary, for example, the question was whether the Colville Reservation, in the State of Washington, had been diminished. The Court noted that an 1892 Act which "`vacated and restored to the public domain'" about one-half of the reservation lands had diminished the reservation as to that half. As to the other half, Congress in 1906 had provided for allotments to the Indians, followed by the sale of mineral lands and entry onto the surplus lands under the homestead laws. This Court held that the 1906 Act did not result in diminishment: "Nowhere in the 1906 Act is there to be found any language similar to that in the 1892 Act expressly vacating the South Half of the reservation and restoring that land to the public domain." This Court subsequently characterized the 1892 Act at issue in Seymour as an example of Congress' using "clear language of express termination when that result is desired." n. 22. And in all nine Justices agreed that a statute which "`restored to the public domain'" portions of a reservation would result in and n. 5; In light of our precedents, we hold that the restoration of unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status. Thus, the existence of such language in the operative section of a surplus land Act indicates that the Act diminished the reservation. Indeed, we have found only one case in which a Federal Court of Appeals decided that statutory restoration language did not terminate a reservation, Ute Indian Tribe, 773 F. 2d, at 1092, a conclusion the Tenth Circuit has since disavowed as "unexamined and unsupported." Pittsburg & Midway Coal Mining *415 Until the Ute Indian Tribe litigation in the Tenth Circuit, every court had decided that the unallotted lands were restored to the public domain pursuant to the terms of the 1902 Act, with the 1905 Act simply extending the time for opening and providing for a few details. ; United ; Uintah and White River Bands of Ute ; Petitioner argues, however, that the 1905 Act changed the "manner" in which the lands were to be opened. That Act specified that the homestead and townsite laws would apply, and so superseded the "restore to the public domain" language of the 1902 Act, language that was not repeated in the 1905 Act. We disagree, because the baseline intent to diminish the reservation expressed in the 1902 Act survived the passage of the 1905 Act. Every congressional action subsequent to the 1902 Act referred to that statute. The 1902 Joint Resolution provided an appropriation prior to the restoration of surplus reservation lands to the public domain. The 1903 and 1904 Acts simply extended the deadline for opening the reservations in order to allow more time for surveying the lands, so that the "purposes" of the 1902 Act could be carried out. ; And the 1905 Act recognized that they were all tied together when it provided that the proceeds of the sale of the unallotted lands "shall be applied as provided in the [1902 Act] and the Acts amendatory thereof and supplementary thereto." The Congress that passed the 1905 Act clearly viewed the 1902 statute as the basic legislation upon which subsequent Acts were built. Furthermore, the structure of the statutes requires that the 1905 Act and the 1902 Act be read together. Whereas the 1905 Act provided for the disposition of unallotted lands, it was the 1902 Act that provided for allotments to the Indians. *416 The 1902 Act also established the price for which the unallotted lands were to be sold, and what was to be done with the proceeds of the sales. The 1905 Act did not repeat these essential features of the opening, because they were already spelled out in the 1902 Act. The two statutes—as well as those that came in between—must therefore be read together. Finally, the general rule that repeals by implication are disfavored is especially strong in this case, because the 1905 Act expressly repealed the provision in the 1903 Act concerning the siting of the grazing lands; if Congress had meant to repeal any part of any other previous statute, it could easily have done so. Furthermore, the predicate for finding an implied repeal is not present in this case, because the opening provisions of the two statutes are not inconsistent: The 1902 Act also provided that the unallotted lands restored to the public domain could be sold pursuant to the homestead laws. Other surplus land Acts which we have held to have effected diminishment similarly provided for initial entry under the homestead and townsite laws. See ; B Contemporary historical evidence supports our conclusion that Congress intended to diminish the Uintah Reservation. As we have noted, the plain language of the 1902 Act demonstrated the congressional purpose to diminish the Uintah Reservation. Under the 1902 Act, however, the consent of the Indians was required before the reservation could be diminished; that consent was withheld by the Indians living on the reservation. After this Court's Lone Wolf decision in 1903, Congress authorized the Secretary of the Interior to proceed unilaterally. The Acting Commissioner for Indian Affairs in the Department of the Interior directed Indian Inspector James McLaughlin to travel to the Uintah Reservation to "endeavor to obtain [the Indians'] consent to the *417 allotment of lands as provided in the law, and to the restoration of the surplus " Letter from A. C. Tonner to James McLaughlin (Apr. 27, 1903), reprinted in S. Doc. No. 58th Cong., 3d Sess., 9 (1905). The Acting Commissioner noted, however, that the effect of the 1903 Act was that "if the [Indians] do not consent to the allotments by the first of June next the allotments are to be made notwithstanding, and the unallotted lands are to be opened to entry" according to the terms of the 1902 Act. Inspector McLaughlin explained the effect of these recent developments to the Indians living on the Reservation: "`By that decision of the Supreme Court, Congress has the legal right to legislate in regard to Indian lands, and Congress has enacted a law which requires you to take your allotments. "`You say that [the Reservation boundary] line is very heavy and that the reservation is nailed down upon the border. That is very true as applying to the past many years and up to now, but congress has provided legislation which will pull up the nails which hold down that line and after next year there will be no outside boundary line to this reservation.'" Minutes of Councils Held by James McLaughlin, U. S. Indian Inspector, with the Uintah and White River Ute Indians at Uintah Agency, Utah, from May 18 to May 23, 1903, excerpted in App. to Brief for Respondent 4a-5a Inspector McLaughlin's picturesque phrase reflects the contemporaneous understanding, by him conveyed to the Indians, that the reservation would be diminished by operation of the 1902 and 1903 Acts notwithstanding the failure of the Indians to give their consent. The Secretary of the Interior informed Congress in February 1904 that the necessary surveying could not be completed before the date set for the opening, and requested *418 that the opening be delayed. Letter from E. A. Hitchcock to the Chairman of the Senate Committee on Indian Affairs (Feb. 6, 1904), reprinted in S. Doc. No. In the 1904 Act, Congress accordingly extended the time for opening until March 10, 1905, and appropriated additional funds "to enable the Secretary of the Interior to do the necessary surveying" of the reservation The Secretary of the Interior subsequently informed Congress that a further extension would be necessary because the surveying and allotments could not be completed during the winter. Letter from E. A. Hitchcock to the Chairman of the House Committee on Indian Affairs (Dec. 10, 1904), reprinted in S. Doc. No. The House of Representatives took up the matter on January 21, 1905. The bill on which debate was held provided that "so much of said lands as will be under the provisions of said acts restored to the public domain shall be open to settlement and entry by proclamation of the President of the United States, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered." H. R. 17474, quoted in 39 Cong. Rec. 1180 (1905). Representative Howell of Utah offered as an amendment "[t]hat for one year immediately following the restoration of said lands to the public domain said lands shall be subject to entry only under the homestead, town-site, and mining laws of the United States." Significantly, Representative Howell offered his amendment as an addition to, not a replacement for, the language in the bill that explicitly referred to the lands' restoration to the public domain. He explained: "In the pending bill these lands, when restored to the public domain, are subject to entry under the general land laws of the United States, coupled with such rules and regulations as the President may prescribe. In my humble judgment there should be some provision such as is embodied in my amendment, limiting the lands in the reservation to entry under the homestead, town-site, *419 and mining laws alone for one year from the date of the opening. "Congress should see to it that until such time as those lands easy of access, reclamation, and irrigation are settled by actual home makers the provisions of the homestead law alone shall prevail. This policy is in accord with the dominant sentiment of the time, viz, that the public lands shall be reserved for actual homes for the people." Although the amendment was rejected in the House of Representatives, the Senate substituted the current version of the 1905 Act, which is similar to the amendment offered by Representative Howell but omits the restoration language of the House version. In the hearings on the Senate bill, Senator Teller of Colorado had stated that "I am not going to agree to any entry of that land except under the homestead and town-site entries," because "I am not going to consent to any speculators getting public land if I can help " Indian Appropriation Bill, 1906, Hearings before the Senate Subcommittee of the Committee on Indian Affairs, 58th Cong., 3d Sess., 30 (1905). Thus, although we have no way of knowing for sure why the Senate decided to limit the "manner" of opening, it seems likely that Congress wanted to limit land speculation. That objective is not inconsistent with the restoration of the unallotted lands to the public domain: Once the lands became public, Congress could of course place limitations on their entry, sale, and settlement. The Proclamation whereby President Roosevelt actually opened the reservation to settlement makes clear that the 1905 Act did not repeal the restoration language of the 1902 Act. In that document, the President stated that the 1902 Act provided that the unallotted lands were to be restored to the public domain, that the 1903, 1904, and 1905 Acts extended the time for the opening, and that those lands were *420 now opened for settlement under the homestead laws "by virtue of the power in [him] vested by said Acts of Congress." President Roosevelt thus clearly understood the 1905 Act to incorporate the 1902 Act, and specifically the restoration language. This "unambiguous, contemporaneous, statement, by the Nation's Chief Executive," is clear evidence of the understanding at the time that the Uintah Reservation would be diminished by the opening of the unallotted lands to non-Indian settlement. The subsequent history is less illuminating than the contemporaneous evidence. Since 1905, Congress has repeatedly referred to the Uintah Reservation in both the past and present tenses, reinforcing our longstanding observation that "[t]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United The District Court in the Ute Indian Tribe case extensively cataloged these congressional references, and we agree with that court's conclusion: "Not only are the references grossly inconsistent when considered together, they are merely passing references in text, not deliberate expressions of informal conclusions about congressional intent in 1905." Because the textual and contemporaneous evidence of diminishment is clear, however, the confusion in the subsequent legislative record does nothing to alter our conclusion that the Uintah Reservation was diminished. C Finally, our conclusion that the statutory language and history indicate a congressional intent to diminish is not controverted by the subsequent demographics of the Uintah Valley area. We have recognized that "[w]hen an area is predominately populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains *421 Indian country seriously burdens the administration of state and local governments." 465 U. S., -472, n. 12. Of the original 2 million acres reserved for Indian occupation, approximately 400,000 were opened for non-Indian settlement in 1905. Almost all of the non-Indians live on the opened The current population of the area is approximately 85 percent non-Indian. Census of Population and Housing, Summary Population and Housing Characteristics: Utah, CPH-1-46, Table 17, p. 73. The population of the largest city in the area—Roosevelt City, named for the President who opened the reservation for settlement— is about 93 percent non-Indian. Table 3, p. 13. The seat of Ute tribal government is in Fort Duchesne, which is situated on Indian trust By contrast, we found it significant in that the seat of tribal government was located on opened The State of Utah exercised jurisdiction over the opened lands from the time the reservation was opened until the Tenth Circuit's Ute Indian Tribe decision. That assumption of authority again stands in sharp contrast to the situation in where "tribal authorities and Bureau of Indian Affairs personnel took primary responsibility for policing the opened lands during the years following [the opening in] 1908." This "jurisdictional history," as well as the current population situation in the Uintah Valley, demonstrates a practical acknowledgment that the Reservation was diminished; a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area. Cf. V We conclude that the Uintah Indian Reservation has been diminished by Congress. Accordingly, the town of Myton, where petitioner committed a crime, is not in Indian country and the Utah courts properly exercised criminal jurisdiction *422 over him. We therefore affirm the judgment of the Utah Supreme Court. So ordered.

Justice Rehnquist

dissenting

Hathorn v. Lovorn

https://www.courtlistener.com/opinion/110743/hathorn-v-lovorn/

https://www.courtlistener.com/api/rest/v3/clusters/110743/

1981-121

The provisions of §§ 5, 12(f), and 14(b) of the Voting Rights Act, referred to in the opinion of the Court, ante, at 265-268, convince me that Congress did not intend the state courts to play a role in the enforcement of that Act. In Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981), upon which the Court heavily relies for its contrary conclusion, we said: "The factors generally recommending exclusive federal court jurisdiction over an area of federal law include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims." Id., at 483-484 (footnotes omitted). It seems to me that each of these factors counsels in favor of exclusive federal-court jurisdiction, and I do not understand the Court to contend otherwise. From a practical point of view, I think the Court's decision is bound to breed conflicts between the state courts and the federal district courts sitting within the States, each of which may now determine whether or not a particular voting change must be precleared with the Attorney General before being enforced in a covered jurisdiction. Indeed, the precursor of such conflict may well be found in the Court's concluding observations that the District Court for the Northern District of Mississippi, in which the United States has pending a suit pertaining to the change involved in this case, should proceed to make determinations under the Voting *272 Rights Act before the state court whose judgment we are reviewing renders further remedy in this case. Exactly what is to be left to the States under this construction is more than a little problematical. I do not think that the goals of the Voting Rights Act will be materially advanced by the Court's somewhat tortured effort to make the state courts a third line of enforcement for the Act, after the District Court for the District of Columbia and other federal district courts. The principal effect of today's decision will be to enable one or the other of parties such as those involved in this case, neither of whom were intended to be primary beneficiaries of the Voting Rights Act, to employ the Act as another weapon in their arsenal of litigation strategies.

The provisions of 5, 12(f), and 14(b) of the Voting Rights Act, referred to in the opinion of the Court, ante, at 265-268, convince me that Congress did not intend the state courts to play a role in the enforcement of that Act. In Gulf Offshore upon which the Court heavily relies for its contrary conclusion, we said: "The factors generally recommending exclusive federal court jurisdiction over an area of federal law include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims." It seems to me that each of these factors counsels in favor of exclusive federal-court jurisdiction, and I do not understand the Court to contend otherwise. From a practical point of view, I think the Court's decision is bound to breed conflicts between the state courts and the federal district courts sitting within the States, each of which may now determine whether or not a particular voting change must be precleared with the Attorney General before being enforced in a covered jurisdiction. Indeed, the precursor of such conflict may well be found in the Court's concluding observations that the District Court for the Northern District of Mississippi, in which the United States has pending a suit pertaining to the change involved in this case, should proceed to make determinations under the Voting *272 Rights Act before the state court whose judgment we are reviewing renders further remedy in this case. Exactly what is to be left to the States under this construction is more than a little problematical. I do not think that the goals of the Voting Rights Act will be materially advanced by the Court's somewhat tortured effort to make the state courts a third line of enforcement for the Act, after the District Court for the District of Columbia and other federal district courts. The principal effect of today's decision will be to enable one or the other of parties such as those involved in this case, neither of whom were intended to be primary beneficiaries of the Voting Rights Act, to employ the Act as another weapon in their arsenal of litigation strategies.

Justice Marshall

dissenting

McCleskey v. Zant

https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/

https://www.courtlistener.com/api/rest/v3/clusters/112573/

1990-059

Today's decision departs drastically from the norms that inform the proper judicial function. Without even the most casual admission that it is discarding longstanding legal principles, the Court radically redefines the content of the "abuse of the writ" doctrine, substituting the strict-liability "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72 (1977), for the good-faith "deliberate abandonment" standard of Sanders v. United States, 373 U.S. 1 (1963). This doctrinal innovation, which repudiates a line of judicial decisions codified by Congress in the governing statute and procedural rules, was by no means foreseeable when the petitioner in this case filed his first federal habeas application. Indeed, the new rule announced and applied today was not even requested by respondent at any point in this litigation. Finally, rather than remand this case for reconsideration in light of its new standard, the majority performs an independent reconstruction of the record, disregarding the factual findings of the District Court and applying its new rule in a *507 manner that encourages state officials to conceal evidence that would likely prompt a petitioner to raise a particular claim on habeas. Because I cannot acquiesce in this unjustifiable assault on the Great Writ, I dissent. I Disclaiming innovation, the majority depicts the "cause and prejudice" test as merely a clarification of existing law. Our decisions, the majority explains, have left "[m]uch confusion. . . on the standard for determining when a petitioner abuses the writ." Ante, at 477. But amidst this "confusion," the majority purports to discern a trend toward the cause-and-prejudice standard and concludes that this is the rule that best comports with "our habeas corpus precedents," ante, at 490; see ante, at 495, and with the "complex and evolving body of equitable principles" that have traditionally defined the abuse-of-the-writ doctrine, id., at 489. This attempt to gloss over the break between today's decision and established precedents is completely unconvincing. Drawing on the practice at common law in England, this Court long ago established that the power of a federal court to entertain a second or successive petition should turn not on "the inflexible doctrine of res judicata" but rather on the exercise of "sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject." Wong Doo v. United States, 265 U.S. 239, 240-241 (1924); accord, Salinger v. Loisel, 265 U.S. 224, 230-232 (1924). Thus, in Wong Doo, the Court held that the District Court acted within its discretion in dismissing a petition premised on a ground that was raised but expressly abandoned in an earlier petition. "The petitioner had full opportunity," the Court explained, "to offer proof [of the abandoned ground] at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then." 265 U.S., at 241. Noting that the evidence supporting the abandoned ground had been "accessible *508 all the time," the Court inferred that petitioner, an alien seeking to forestall his imminent deportation, had split his claims in order to "postpone the execution of the [deportation] order." Ibid. In Price v. Johnston, 334 U.S. 266 (1948), in contrast, the Court held that the District Court abused its discretion by summarily dismissing a petition that raised a claim not asserted in any of three previous petitions filed by the same prisoner. Whereas it had been clear from the record that the petitioner in Wong Doo had possessed access to the facts supporting his abandoned claim, the District Court in Price had no basis for assuming that the prisoner had "acquired no new or additional information since" the disposition of his earlier petitions. Id., at 290. "[E]ven if it [had been] found that petitioner did have prior knowledge of all the facts concerning the allegation in question," the Court added, the District Court should not have dismissed the petition before affording the prisoner an opportunity to articulate "some justifiable reason [why] he was previously unable to assert his rights or was unaware of the significance of relevant facts." Id., at 291. In Sanders v. United States, 373 U.S. 1 (1963), the Court crystallized the various factors bearing on a district court's discretion to entertain a successive petition.[1] The Court in Sanders distingnished successive petitions raising previously asserted grounds from those raising previously unasserted grounds. With regard to the former class of petitions, the Court explained, the district court may give "[c]ontrolling weight . . . to [the] denial of a prior application" unless "the ends of justice would . . . be served by reaching the merits of the subsequent application." Id., at 15. With regard to the *509 latter, however, the district court must reach the merits of the petition unless "there has been an abuse of the writ. . . ." Id., at 17. In determining whether the omission of the claim from the previous petition constitutes an abuse of the writ, the judgment of the district court is to be guided chiefly by the "`[equitable] principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Ibid., quoting Fay v. Noia, 372 U.S. 391, 438 (1963). "Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." 373 U.S., at 18. What emerges from Sanders and its predecessors is essentially a good-faith standard. As illustrated by Wong Doo, the principal form of bad faith that the "abuse of the writ" doctrine is intended to deter is the deliberate abandonment of a claim the factual and legal basis of which are known to the petitioner (or his counsel) when he files his first petition. The Court in Sanders stressed this point by equating its analysis with that of Fay v. Noia, supra, which established the then-prevailing "deliberate bypass" test for the cognizability of claims on which a petitioner procedurally defaulted in state proceedings. See 373 U.S., at 18. A petitioner also abuses the writ under Sanders when he uses the writ to achieve some end other than expeditious relief from unlawful confinement — such as "to vex, harass, or delay." However, so long *510 as the petitioner's previous application was based on a good-faith assessment of the claims available to him, see Price v. Johnston, supra, at 289; Wong Doo, supra, at 241; the denial of the application does not bar the petitioner from availing himself of "new or additional information," Price v. Johnston, supra, at 290, in support of a claim not previously raised. Accord, Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427. "Cause and prejudice"—the standard currently applicable to procedural defaults in state proceedings, see Wainwright v. Sykes, 433 U.S. 72 (1977)—imposes a much stricter test. As this Court's precedents make clear, a petitioner has cause for failing effectively to present his federal claim in state proceedings only when "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule . . . ." Murray v. Carrier, 477 U.S. 478, 488 (1986). Under this test, the state of mind of counsel is largely irrelevant. Indeed, this Court has held that even counsel's reasonable perception that a particular claim is without factual or legal foundation does not excuse the failure to raise that claim in the absence of an objective, external impediment to counsel's efforts. See Smith v. Murray, 477 U.S. 527, 535-536 (1986). In this sense, the cause component of the Wainwright v. Sykes test establishes a strict-liability standard.[2] *511 Equally foreign to our abuse-of-the-writ jurisprudence is the requirement that a petitioner show "prejudice." Under Sanders, a petitioner who articulates a justifiable reason for failing to present a claim in a previous habeas application is not required in addition to demonstrate any particular degree of prejudice before the habeas court must consider his claim. If the petitioner demonstrates that his claim has merit, it is the State that must show that the resulting constitutional error was harmless beyond a reasonable doubt. See L. Yackle, Postconviction Remedies § 133, p. 503 (1981).[3] *512 II The real question posed by the majority's analysis is not whether the cause-and-prejudice test departs from the principles of Sanders—for it clearly does — but whether the majority has succeeded in justifying this departure as an exercise of this Court's common-lawmaking discretion. In my view, the majority does not come close to justifying its new standard. A Incorporation of the cause-and-prejudice test into the abuse-of-the-writ doctrine cannot be justified as an exercise of this Court's common-lawmaking discretion, because this Court has no discretion to exercise in this area. Congress has affirmatively ratified the Sanders good-faith standard in the governing statute and procedural rules, thereby insulating that standard from judicial repeal. The abuse-of-the-writ doctrine is embodied in 28 U.S. C. § 2244(b) and in Habeas Corpus Rule 9(b). Enacted three years after Sanders, § 2244(b) recodified the statutory authority of a district court to dismiss a second or successive petition, amending the statutory language to incorporate the Sanders criteria: "[A] subsequent application for a writ of habeas corpus. . . need not be entertained by a court . . . unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court . . . is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S. C. § 2244(b). Consistent with Sanders, the purpose of the recodification was to spare a district court the obligation to entertain a petition "containing allegations identical to those asserted in a previous application that has been denied, or predicated upon grounds obviously well known to [the petitioner] when [he] *513 filed the preceding application." S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) (emphasis added). Rule 9(b) likewise adopts Sanders' terminology: "A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." There can be no question that § 2244(b) and Rule 9(b) codify Sanders. The legislative history of, and Advisory Committee's Notes to, Rule 9(b) expressly so indicate, see 28 U.S. C., pp. 426-427; H. R. Rep. No. 94-1471, pp. 5-6 (1976), and such has been the universal understanding of this Court, see Rose v. Lundy, 455 U.S. 509, 521 (1982), of the lower courts, see, e. g., Williams v. Lockhart, 862 F.2d 155, 157 (CA8 1988); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (CA9 1988), cert. denied, sub nom. Demosthenes v. Neuschafer, 493 U.S. 906 (1989); 860 F.2d, at 1479 (Alarcon, J., concurring in result); Davis v. Dugger, 829 F.2d 1513, 1518, n. 13 (CA11 1987); Passman v. Blackburn, 797 F.2d 1335, 1341 (CA5 1986), cert. denied, 480 U.S. 948 (1987); United States v. Talk, 597 F.2d 249, 250-251 (CA10 1979); United States ex rel. Fletcher v. Brierley, 460 F.2d 444, 446, n. 4A (CA3), cert. denied, 409 U.S. 1044 (1972), and of commentators, see, e. g., 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4267, pp. 477-478 (2d ed. 1988); L. Yackle, supra, § 154.[4] *514 The majority concedes that § 2244(b) and Rule 9(b) codify Sanders, see ante, at 487, but concludes nonetheless that Congress did "not answer" all of the "questions" concerning the abuse-of-the-writ doctrine, ibid. The majority emphasizes that § 2244(b) refers to second or successive petitions from petitioners who have "deliberately withheld the newly asserted ground . . . or otherwise abused the writ" without exhaustively cataloging the ways in which the writ may "otherwise" be "abused." See ante, at 486, 489-490. From this "silenc[e]," the majority infers a congressional delegation of lawmaking power broad enough to encompass the engrafting of the cause-and-prejudice test onto the abuse-of-the-writ doctrine. Ante, at 487. It is difficult to take this reasoning seriously. Because "cause" under Sykes makes the mental state of the petitioner (or his counsel) irrelevant, "cause" completely subsumes "deliberate abandonment." See Engle v. Isaac, 456 U.S. 107, 130, n. 36 (1982); see also Wainwright v. Sykes, 433 U. S., at 87. Thus, if merely failing to raise a claim without "cause"— that is, without some external impediment to raising it —necessarily constitutes an abuse of the writ, the statutory reference to deliberate withholding of a claim would be rendered superfluous. Insofar as Sanders was primarily concerned with limiting dismissal of a second or subsequent petition to instances in which the petitioner had deliberately abandoned the new claim, see 373 U.S., at 18, the suggestion that Congress invested courts with the discretion to read this language out of the statute is completely irreconcilable with the proposition that § 2244(b) and Rule 9(b) codify Sanders. To give content to "otherwise abus[e] the writ" as used in § 2244(b), we must look to Sanders. As I have explained, *515 the Court in Sanders identified two broad classes of bad-faith conduct that bar adjudication of a claim not raised in a previous habeas application: the deliberate abandonment or withholding of that claim from the first petition; and the filing of a petition aimed at some purpose other than expeditious relief from unlawful confinement, such as "to vex, harass, or delay." See ibid. By referring to second or successive applications from habeas petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ," § 2244(b) tracks this division. Congress may well have selected the phrase "otherwise abused the writ" with the expectation that courts would continue to elaborate upon the types of dilatory tactics that, in addition to deliberate abandonment of a known claim, constitute an abuse of the writ. But consistent with Congress' intent to codify Sanders' good-faith test, such elaborations must be confined to circumstances in which a petitioner's omission of an unknown claim is conjoined with his intentional filing of a petition for an improper purpose, such as "to vex, harass or delay." The majority tacitly acknowledges this constraint on the Court's interpretive discretion by suggesting that "cause" is tantamount to "inexcusable neglect." This claim, too, is untenable. The majority exaggerates when it claims that the "inexcusable neglect" formulation—which this Court has never applied in an abuse-of-the-writ decision—functions as an independent standard for evaluating a petitioner's failure to raise a claim in a previous habeas application. It is true that Sanders compared its own analysis to the analysis in Townsend v. Sain, 372 U.S. 293 (1963), which established that a district court should deny an evidentiary hearing if the habeas petitioner inexcusably neglected to develop factual evidence in state proceedings. See id., at 317. Townsend, however, expressly equated "inexcusable neglect" with the "deliberate bypass" test of Fay v. Noia. See 372 U. S., at *516 317.[5] But even if "inexcusable neglect" does usefully describe a class of abuses separate from deliberate abandonment, the melding of "cause and prejudice" into the abuse-of-the-writ doctrine cannot be defended as a means of "giving content" to "inexcusable neglect." Ante, at 490. For under Sykes' strict-liability standard, mere attorney negligence is never excusable. See Murray v. Carrier, 477 U. S., at 488 ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective . . ., we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default"). Confirmation that the majority today exercises legislative power not properly belonging to this Court is supplied by Congress' own recent consideration and rejection of an amendment to § 2244(b). It is axiomatic that this Court does not function as a backup legislature for the reconsideration of failed attempts to amend existing statutes. See Bowsher v. Merck & Co., 460 U.S. 824, 837, n. 12 (1983); FTC v. Ruberoid Co., 343 U.S. 470, 478-479 (1952); see also North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 534-535 (1982). Yet that is exactly the effect of today's decision. As reported out of the House Committee on the Judiciary, § 1303 of H. R. 5269, 101st Cong., 2d Sess. (1990), would have required dismissal of any second or subsequent application by a habeas petitioner under sentence of death unless the petitioner *517 raised a new claim "the factual basis of [which] could not have been discovered by the exercise of reasonable diligence," H. R. Rep. No. 101-681, pt. 1, p. 29 (1990) (emphasis added).[6] The Committee Report accompanying this legislation explained that "courts have properly construed section 2244(b) and Rule 9(b) as codifications of the guidelines the [Supreme] Court itself prescribed in Sanders." Id., at 119 (citation omitted). The Report justified adoption of the tougher "reasonable diligence" standard on the ground that "[t]he Sanders guidelines have not. . . satisfactorily met concerns that death row prisoners may file second or successive habeas corpus applications as a means of extending litigation." Ibid. Unfazed by Congress' rejection of this legislation, the majority arrogates to itself the power to repeal Sanders and to replace it with a tougher standard.[7] B Even if the fusion of cause-and-prejudice into the abuse-of-the-writ doctrine were not foreclosed by the will of Congress, the majority fails to demonstrate that such a rule would be a wise or just exercise of the Court's common-lawmaking discretion. In fact, the majority's abrupt change in law subverts the policies underlying § 2244(b) and unfairly prejudices the petitioner in this case. The majority premises adoption of the cause-and-prejudice test almost entirely on the importance of "finality." See ante, at 490-493. At best, this is an insufficiently developed justification for cause-and-prejudice or any other possible conception of the abuse-of-the-writ doctrine. For the very *518 essence of the Great Writ is our criminal justice system's commitment to suspending "[c]onventional notions of finality of litigation . . . where life or liberty is at stake and infringement of constitutional rights is alleged." Sanders, 373 U. S., at 8. To recognize this principle is not to make the straw-man claim that the writ must be accompanied by "[a] procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude." Ante, at 492, quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963). Rather, it is only to point out the plain fact that we may not, "[u]nder the guise of fashioning a procedural rule, . . . wip[e] out the practical efficacy of a jurisdiction conferred by Congress on the District Courts." Brown v. Allen, 344 U.S. 443, 498-499 (1953) (opinion of Frankfurter, J.). The majority seeks to demonstrate that cause-and-prejudice strikes an acceptable balance between the State's interest in finality and the purposes of habeas corpus by analogizing the abuse-of-the-writ doctrine to the procedural-default doctrine. According to the majority, these two doctrines "implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review." Ante, at 490-491. And because this Court has already deemed cause-and-prejudice to be an appropriate standard for assessing procedural defaults, the majority reasons, the same standard should be used for assessing the failure to raise a claim in a previous habeas petition. See ante, at 490-493. This analysis does not withstand scrutiny. This Court's precedents on the procedural-default doctrine identify two purposes served by the cause-and-prejudice test. The first purpose is to promote respect for a State's legitimate procedural rules. See, e. g., Reed v. Ross, 468 U.S. 1, 14 (1984); Sykes, 433 U. S., at 87-90. As the Court has explained, the willingness of a habeas court to entertain a claim that a state court has deemed to be procedurally barred "undercut[s] the *519 State's ability to enforce its procedural rules," Engle v. Isaac, 456 U. S., at 129, and may cause "state courts themselves [to be] less stringent in their enforcement," Sykes, supra, at 89. See generally Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1150-1158 (1986). The second purpose of the cause-and-prejudice test is to preserve the connection between federal collateral review and the general "deterrent" function served by the Great Writ. "[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards." Teague v. Lane, 489 U.S. 288, 306 (1989) (plurality opinion), quoting Desist v. United States, 394 U.S. 244, 262-263 (1969) (Harlan, J., dissenting); see Rose v. Mitchell, 443 U.S. 545, 563 (1979). Obviously, this understanding of the disciplining effect of federal habeas corpus presupposes that a criminal defendant has given the state trial and appellate courts a fair opportunity to pass on his constitutional claims. See Murray v. Carrier, 477 U. S., at 487; Engle v. Isaac, supra, at 128-129. With regard to both of these purposes, the strictness of the cause-and-prejudice test has been justified on the ground that the defendant's procedural default is akin to an independent and adequate state-law ground for the judgment of conviction. See Sykes, supra, at 81-83. Neither of these concerns is even remotely implicated in the abuse-of-the-writ setting. The abuse-of-the-writ doctrine clearly contemplates a situation in which a petitioner (as in this case) has complied with applicable state-procedural rules and effectively raised his constitutional claim in state proceedings; were it otherwise, the abuse-of-the-writ doctrine would not perform a screening function independent from that performed by the procedural-default doctrine and by the requirement that a habeas petitioner exhaust his state remedies, see 28 U.S. C. §§ 2254(b), (c). Cf. ante, at 486-487. Because the abuse-of-the-writ doctrine presupposes that the *520 petitioner has effectively raised his claim in state proceedings, a decision by the habeas court to entertain the claim notwithstanding its omission from an earlier habeas petition will neither breed disrespect for state-procedural rules nor unfairly subject state courts to federal collateral review in the absence of a state-court disposition of a federal claim.[8] Because the abuse-of-the-writ doctrine addresses the situation in which a federal habeas court must determine whether to hear a claim withheld from another federal habeas court, the test for identifying an abuse must strike an appropriate balance between finality and review in that setting. Only when informed by Sanders does § 2244(b) strike an efficient balance. A habeas petitioner's own interest in liberty furnishes a powerful incentive to assert in his first petition all claims that the petitioner (or his counsel) believes have a reasonable prospect for success. See Note, 83 Harv. L. Rev. 1038, 1153-1154 (1970); see also Rose v. Lundy, 455 U. S., at 520 ("The prisoner's principal interest, of course, is in obtaining speedy federal relief on his claims"). Sanders' bar on the later assertion of claims omitted in bad faith adequately fortifies this natural incentive. At the same time, however, the petitioner faces an effective disincentive to asserting any claim that he believes does not have a reasonable prospect for *521 success: the adverse adjudication of such a claim will bar its reassertion under the successive-petition doctrine, see 28 U.S. C. § 2244(b); Sanders, supra, at 17, whereas omission of the claim will not prevent the petitioner from asserting the claim for the first time in a later petition should the discovery of new evidence or the advent of intervening changes in law invest the claim with merit, S. Rep. No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427. The cause-and-prejudice test destroys this balance. By design, the cause-and-prejudice standard creates a near-irrebuttable presumption that omitted claims are permanently barred. This outcome not only conflicts with Congress' intent that a petitioner be free to avail himself of newly discovered evidence or intervening changes in law, S. Rep. No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427, but also subverts the statutory disincentive to the assertion of frivolous claims. Rather than face the cause-and-prejudice bar, a petitioner will assert all conceivable claims, whether or not these claims reasonably appear to have merit. The possibility that these claims will be adversely adjudicated and thereafter be barred from relitigation under the successive-petition doctrine will not effectively discourage the petitioner from asserting them, for the petitioner will have virtually no expectation that any withheld claim could be revived should his assessment of its merit later prove mistaken. Far from promoting efficiency, the majority's rule thus invites the very type of "baseless claims," ante, at 493, that the majority seeks to avert. The majority's adoption of the cause-and-prejudice test is not only unwise, but also manifestly unfair. The proclaimed purpose of the majority's new strict-liability standard is to increase to the maximum extent a petitioner's incentive to investigate all conceivable claims before filing his first petition. See ante, at 498. Whatever its merits, this was not the rule when the petitioner in this case filed his first petition. *522 From the legislative history of § 2244(b) and Rule 9(b) and from the universal agreement of courts and commentators, see supra, at 513, McCleskey's counsel could have reached no other conclusion but that his investigatory efforts in preparing his client's petition would be measured against the Sanders good-faith standard. There can be little question that his efforts satisfied that test; indeed, the District Court expressly concluded that McCleskey's counsel on his first habeas conducted a reasonable and competent investigation before concluding that a claim based on Massiah v. United States, 377 U.S. 201 (1964), would be without factual foundation. See App. 84-85; see also infra, at 526. Before today, that would have been enough. The Court's utter indifference to the injustice of retroactively applying its new, strict-liability standard to this habeas petitioner stands in marked contrast to this Court's eagerness to protect States from the unfair surprise of "new rules" that enforce the constitutional rights of citizens charged with criminal wrongdoing. See Butler v. McKellar, 494 U.S. 407, 412-414 (1990); Saffle v. Parks, 494 U.S. 484, 488 (1990); Teague v. Lane, 489 U. S., at 299-310 (plurality opinion). This injustice is compounded by the Court's activism in fashioning its new rule. The applicability of Sykes' cause-and-prejudice test was not litigated in either the District Court or the Court of Appeals. The additional question that we requested the parties to address reasonably could have been read to relate merely to the burden of proof under the abuse-of-the-writ doctrine;[9] it evidently did not put the parties on notice that this Court was contemplating a change in the governing legal standard, since respondent did not even mention Sykes or cause-and-prejudice in his brief or at oral *523 argument, much less request the Court to adopt this standard.[10] In this respect, too, today's decision departs from norms that inform the proper judicial function. See Heckler v. Campbell, 461 U.S. 458, 468, n. 12 (1983) (Court will consider ground in support of judgment not raised below only in extraordinary case); accord, Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 39 (1989). It cannot be said that McCleskey had a fair opportunity to challenge the reasoning that the majority today invokes to strip him of his Massiah claim. III The manner in which the majority applies its new rule is as objectionable as the manner in which the majority creates that rule. As even the majority acknowledges, see ante, at 470, the standard that it announces today is not the one employed by the Court of Appeals, which purported to rely on Sanders, see 890 F.2d 342, 347 (CA11 1989). See ante, at 470. Where, as here, application of a different standard from the one applied by the lower court requires an in-depth review of the record, the ordinary course is to remand so that the parties have a fair opportunity to address, and the lower court to consider, all of the relevant issues. See, e. g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); Mandel v. Bradley, 432 U.S. 173, 179 (1977) (per curiam); see also United States v. Hasting, 461 U.S. 499, 515-518 (1983) (STEVENS, J., concurring in judgment) (Court should not undertake record-review "function that can better be performed by other judges"). *524 A remand would have been particularly appropriate in this case in view of the patent deficiencies in the reasoning of the Court of Appeals. The Court of Appeals concluded that McCleskey deliberately abandoned his Massiah claim because his counsel "made a knowing choice not to pursue the claim after having raised it" unsuccessfully on state collateral review. 890 F.2d, at 349. This reasoning, which the majority declines to endorse, is obviously faulty. As I have explained, the abuse-of-the-writ doctrine is independent from the procedural-default and exhaustion doctrines; § 2244(b) and Rule 9(b) contemplate a habeas petitioner who has effectively presented his claim in state proceedings but withheld that claim from a previous habeas application. Because § 2244(b) and Rule 9(b) authorize the district court to consider such a claim under appropriate circumstances, it cannot be the case that a petitioner invariably abuses the writ by consciously failing to include in his first habeas petition a claim raised in state proceedings. Insofar as Congress intended that the district court excuse the withholding of a claim when the petitioner produces newly discovered evidence or intervening changes in law, S. Rep. No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427, a petitioner cannot be deemed to have deliberately abandoned the claim in an earlier habeas proceeding unless the petitioner was aware then of the evidence and law that support the claim. See, e. g., Wong Doo, 265 U. S., at 241. If the Court of Appeals had properly applied Sanders, it would almost certainly have agreed with the District Court's conclusion that McCleskey was not aware of the evidence that supported his Massiah claim when he filed his first petition. In any case, because the Court of Appeals' reversal was based on an erroneous application of Sanders, the majority's decision not to remand cannot be justified on the ground that the Court of Appeals would necessarily have decided the case the same way under the cause-and-prejudice standard. *525 Undaunted by the difficulty of applying its new rule without the benefit of any lower court's preliminary consideration, the majority forges ahead to perform its own independent review of the record. The majority concludes that McCleskey had no cause to withhold his Massiah claim because all of the evidence supporting that claim was available before he filed his first habeas petition. The majority purports to accept the District Court's finding that Offie Evans' 21-page statement was, at that point, being held beyond McCleskey's reach. See ante, at 498, and n.[11] But the State's failure to produce this document, the majority explains, furnished no excuse for McCleskey's failure to assert his Massiah claim "because McCleskey participated in the conversations reported by Evans," and therefore "knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police." Ante, at 500. The majority also points out that no *526 external force impeded McCleskey's discovery of the testimony of jailer Worthy. See ibid. To appreciate the hollowness — and the dangerousness — of this reasoning, it is necessary to recall the District Court's central finding: that the State did covertly plant Evans in an adjoining cell for the purpose of eliciting incriminating statements that could be used against McCleskey at trial. See App. 83. Once this finding is credited, it follows that the State affirmatively misled McCleskey and his counsel throughout their unsuccessful pursuit of the Massiah claim in state collateral proceedings and their investigation of that claim in preparing for McCleskey's first federal habeas proceeding. McCleskey's counsel deposed or interviewed the assistant district attorney, various jailers, and other government officials responsible for Evans' confinement, all of whom denied any knowledge of an agreement between Evans and the State. See App. 25-28, 44-47, 79, 85. Against this background of deceit, the State's withholding of Evans' 21-page statement assumes critical importance. The majority overstates McCleskey's and his counsel's awareness of the statement's contents. For example, the statement relates that state officials were present when Evans made a phone call at McCleskey's request to McCleskey's girlfriend, Plaintiff's Exh. 8, p. 14, a fact that McCleskey and his counsel had no reason to know and that strongly supports the District Court's finding of an ab initio relationship between Evans and the State. But in any event, the importance of the statement lay much less in what the statement said than in its simple existence. Without the statement, McCleskey's counsel had nothing more than his client's testimony to back up counsel's own suspicion of a possible Massiah violation; given the state officials' adamant denials of any arrangement with Evans, and given the state habeas court's rejection of the Massiah claim, counsel quite reasonably concluded that raising this claim in McCleskey's first habeas petition would be futile. All this changed once *527 counsel finally obtained the statement, for at that point, there was credible, independent corroboration of counsel's suspicion. This additional evidence not only gave counsel the reasonable expectation of success that had previously been lacking, but also gave him a basis for conducting further investigation into the underlying claim. Indeed, it was by piecing together the circumstances under which the statement had been transcribed that McCleskey's counsel was able to find Worthy, a state official who was finally willing to admit that Evans had been planted in the cell adjoining McCleskey's.[12] The majority's analysis of this case is dangerous precisely because it treats as irrelevant the effect that the State's disinformation strategy had on counsel's assessment of the reasonableness of pursing the Massiah claim. For the majority, all that matters is that no external obstacle barred McCleskey from finding Worthy. But obviously, counsel's decision even to look for evidence in support of a particular claim has to be informed by what counsel reasonably perceives to be the prospect that the claim may have merit; in this case, by withholding the 21-page statement and by affirmatively misleading counsel as to the State's involvement with Evans, state officials created a climate in which McCleskey's first habeas counsel was perfectly justified in focusing his attentions elsewhere. The sum and substance of the majority's analysis is that McCleskey had no "cause" for failing to assert the Massiah claim because he did not try *528 hard enough to pierce the State's veil of deception. Because the majority excludes from its conception of cause any recognition of how state officials can distort a petitioner's reasonable perception of whether pursuit of a particular claim is worthwhile, the majority's conception of "cause" creates an incentive for state officials to engage in this very type of misconduct. Although the majority finds it unnecessary to reach the question whether McCleskey was "prejudiced" by the Massiah violation in this case, I have no doubt that the admission of Evans' testimony at trial satisfies any fair conception of this prong of the Sykes test. No witness from the furniture store was able to identify which of the four robbers shot the off-duty police officer. The State did put on evidence that McCleskey had earlier stolen the pearl-handled pistol that was determined to be the likely murder weapon, but the significance of this testimony was clouded by a codefendant's admission that he had been carrying this weapon for weeks at a time, App. 16, and by a prosecution witness' own prior statement that she had seen only the codefendant carry the pistol, id., at 11-14. See also id., at 89 (District Court finding that "the evidence on [McCleskey's] possession of the gun in question was conflicting"). Outside of the self-serving and easily impeachable testimony of the codefendant, the only evidence that directly supported the State's identification of McCleskey as the triggerman was the testimony of Evans. As the District Court found, "Evans' testimony about the petitioner's incriminating statements was critical to the state's case." Id., at 89. Without it, the jury might very well have reached a different verdict. Thus, as I read the record, McCleskey should be entitled to the consideration of his petition for habeas corpus even under the cause-and-prejudice test. The case is certainly close enough to warrant a remand so that the issues can be fully and fairly briefed. *529 IV Ironically, the majority seeks to defend its doctrinal innovation on the ground that it will promote respect for the "rule of law." Ante, at 492. Obviously, respect for the rule of law must start with those who are responsible for pronouncing the law. The majority's invocation of "the orderly administration of justice," ante, at 496, rings hollow when the majority itself tosses aside established precedents without explanation, disregards the will of Congress, fashions rules that defy the reasonable expectations of the persons who must conform their conduct to the law's dictates, and applies those rules in a way that rewards state misconduct and deceit. Whatever "abuse of the writ" today's decision is designed to avert pales in comparison with the majority's own abuse of the norms that inform the proper judicial function. I dissent.

Today's decision departs drastically from the norms that inform the proper judicial function. Without even the most casual admission that it is discarding longstanding legal principles, the Court radically redefines the content of the "abuse of the writ" doctrine, substituting the strict-liability "cause and prejudice" standard of for the good-faith "deliberate abandonment" standard of This doctrinal innovation, which repudiates a line of judicial decisions codified by Congress in the governing statute and procedural rules, was by no means foreseeable when the petitioner in this case filed his first federal habeas application. Indeed, the new rule announced and applied today was not even requested by respondent at any point in this litigation. Finally, rather than remand this case for reconsideration in light of its new standard, the majority performs an independent reconstruction of the record, disregarding the factual findings of the District Court and applying its new rule in a *507 manner that encourages state officials to conceal evidence that would likely prompt a petitioner to raise a particular claim on habeas. Because I cannot acquiesce in this unjustifiable assault on the Great Writ, I dissent. I Disclaiming innovation, the majority depicts the "cause and prejudice" test as merely a clarification of existing law. Our decisions, the majority explains, have left "[m]uch confusion. on the standard for determining when a petitioner abuses the writ." Ante, at 477. But amidst this "confusion," the majority purports to discern a trend toward the cause-and-prejudice standard and concludes that this is the rule that best comports with "our habeas corpus precedents," ante, at 490; see ante, at 495, and with the "complex and evolving body of equitable principles" that have traditionally defined the abuse-of-the-writ doctrine, This attempt to gloss over the break between today's decision and established precedents is completely unconvincing. Drawing on the practice at common law in England, this Court long ago established that the power of a federal court to entertain a second or successive petition should turn not on "the inflexible doctrine of res judicata" but rather on the exercise of "sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject." Wong ; accord, Thus, in Wong the Court held that the District Court acted within its discretion in dismissing a petition premised on a ground that was raised but expressly abandoned in an earlier petition. "The petitioner had full opportunity," the Court explained, "to offer proof [of the abandoned ground] at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then." Noting that the evidence supporting the abandoned ground had been "accessible *508 all the time," the Court inferred that petitioner, an alien seeking to forestall his imminent deportation, had split his claims in order to "postpone the execution of the [deportation] order." In in contrast, the Court held that the District Court abused its discretion by summarily dismissing a petition that raised a claim not asserted in any of three previous petitions filed by the same prisoner. Whereas it had been clear from the record that the petitioner in Wong had possessed access to the facts supporting his abandoned claim, the District Court in Price had no basis for assuming that the prisoner had "acquired no new or additional information since" the disposition of his earlier petitions. "[E]ven if it [had been] found that petitioner did have prior knowledge of all the facts concerning the allegation in question," the Court added, the District Court should not have dismissed the petition before affording the prisoner an opportunity to articulate "some justifiable reason [why] he was previously unable to assert his rights or was unaware of the significance of relevant facts." In the Court crystallized the various factors bearing on a district court's discretion to entertain a successive petition.[1] The Court in distingnished successive petitions raising previously asserted grounds from those raising previously unasserted grounds. With regard to the former class of petitions, the Court explained, the district court may give "[c]ontrolling weight to [the] denial of a prior application" unless "the ends of justice would be served by reaching the merits of the subsequent application." With regard to the *509 latter, however, the district court must reach the merits of the petition unless "there has been an abuse of the writ." In determining whether the omission of the claim from the previous petition constitutes an abuse of the writ, the judgment of the district court is to be guided chiefly by the "`[equitable] principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Ib quoting "Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." What emerges from and its predecessors is essentially a good-faith standard. As illustrated by Wong the principal form of bad faith that the "abuse of the writ" doctrine is intended to deter is the deliberate abandonment of a claim the factual and legal basis of which are known to the petitioner (or his counsel) when he files his first petition. The Court in stressed this point by equating its analysis with that of which established the then-prevailing "deliberate bypass" test for the cognizability of claims on which a petitioner procedurally defaulted in state proceedings. See A petitioner also abuses the writ under when he uses the writ to achieve some end other than expeditious relief from unlawful confinement — such as "to vex, harass, or delay." However, so long *510 as the petitioner's previous application was based on a good-faith assessment of the claims available to him, see ; Wong ; the denial of the application does not bar the petitioner from availing himself of "new or additional information," in support of a claim not previously raised. Accord, Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427. "Cause and prejudice"—the standard currently applicable to procedural defaults in state proceedings, see —imposes a much stricter test. As this Court's precedents make clear, a petitioner has cause for failing effectively to present his federal claim in state proceedings only when "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule" Under this test, the state of mind of counsel is largely irrelevant. Indeed, this Court has held that even counsel's reasonable perception that a particular claim is without factual or legal foundation does not excuse the failure to raise that claim in the absence of an objective, external impediment to counsel's efforts. See In this sense, the cause component of the test establishes a strict-liability standard.[2] *511 Equally foreign to our abuse-of-the-writ jurisprudence is the requirement that a petitioner show "prejudice." Under a petitioner who articulates a justifiable reason for failing to present a claim in a previous habeas application is not required in addition to demonstrate any particular degree of prejudice before the habeas court must consider his claim. If the petitioner demonstrates that his claim has merit, it is the State that must show that the resulting constitutional error was harmless beyond a reasonable doubt. See L. Postconviction Remedies 133, p. 503 (1981).[3] *512 II The real question posed by the majority's analysis is not whether the cause-and-prejudice test departs from the principles of —for it clearly does — but whether the majority has succeeded in justifying this departure as an exercise of this Court's common-lawmaking discretion. In my view, the majority does not come close to justifying its new standard. A Incorporation of the cause-and-prejudice test into the abuse-of-the-writ doctrine cannot be justified as an exercise of this Court's common-lawmaking discretion, because this Court has no discretion to exercise in this area. Congress has affirmatively ratified the good-faith standard in the governing statute and procedural rules, thereby insulating that standard from judicial repeal. The abuse-of-the-writ doctrine is embodied in 28 U.S. C. 2244(b) and in Habeas Corpus Rule 9(b). Enacted three years after 2244(b) recodified the statutory authority of a district court to dismiss a second or successive petition, amending the statutory language to incorporate the criteria: "[A] subsequent application for a writ of habeas corpus. need not be entertained by a court unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S. C. 2244(b). Consistent with the purpose of the recodification was to spare a district court the obligation to entertain a petition "containing allegations identical to those asserted in a previous application that has been denied, or predicated upon grounds obviously well known to [the petitioner] when [he] *513 filed the preceding application." S. Rep. No. 7, 89th Cong., 2d Sess., 2 (1966) (emphasis added). Rule 9(b) likewise adopts ' terminology: "A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." There can be no question that 2244(b) and Rule 9(b) codify The legislative history of, and Advisory Committee's Notes to, Rule 9(b) expressly so indicate, see 28 U.S. C., pp. 426-427; H. R. Rep. No. 94-71, pp. 5-6 (1976), and such has been the universal understanding of this Court, see of the lower courts, see, e. g., ; cert. denied, sub nom. ; ; ; cert. denied, ; United ; United States ex rel. n. 4A (CA3), cert. denied, and of commentators, see, e. g., 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 4267, pp. 477-478 ; L. 154.[4] *5 The majority concedes that 2244(b) and Rule 9(b) codify see ante, at 487, but concludes nonetheless that Congress did "not answer" all of the "questions" concerning the abuse-of-the-writ doctrine, The majority emphasizes that 2244(b) refers to second or successive petitions from petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ" without exhaustively cataloging the ways in which the writ may "otherwise" be "abused." See ante, at 486, 489-490. From this "silenc[e]," the majority infers a congressional delegation of lawmaking power broad enough to encompass the engrafting of the cause-and-prejudice test onto the abuse-of-the-writ doctrine. Ante, at 487. It is difficult to take this reasoning seriously. Because "cause" under makes the mental state of the petitioner (or his counsel) irrelevant, "cause" completely subsumes "deliberate abandonment." See ; see also Thus, if merely failing to raise a claim without "cause"— that is, without some external impediment to raising it —necessarily constitutes an abuse of the writ, the statutory reference to deliberate withholding of a claim would be rendered superfluous. Insofar as was primarily concerned with limiting dismissal of a second or subsequent petition to instances in which the petitioner had deliberately abandoned the new claim, see the suggestion that Congress invested courts with the discretion to read this language out of the statute is completely irreconcilable with the proposition that 2244(b) and Rule 9(b) codify To give content to "otherwise abus[e] the writ" as used in 2244(b), we must look to As I have explained, *515 the Court in identified two broad classes of bad-faith conduct that bar adjudication of a claim not raised in a previous habeas application: the deliberate abandonment or withholding of that claim from the first petition; and the filing of a petition aimed at some purpose other than expeditious relief from unlawful confinement, such as "to vex, harass, or delay." See By referring to second or successive applications from habeas petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ," 2244(b) tracks this division. Congress may well have selected the phrase "otherwise abused the writ" with the expectation that courts would continue to elaborate upon the types of dilatory tactics that, in addition to deliberate abandonment of a known claim, constitute an abuse of the writ. But consistent with Congress' intent to codify ' good-faith test, such elaborations must be confined to circumstances in which a petitioner's omission of an unknown claim is conjoined with his intentional filing of a petition for an improper purpose, such as "to vex, harass or delay." The majority tacitly acknowledges this constraint on the Court's interpretive discretion by suggesting that "cause" is tantamount to "inexcusable neglect." This claim, too, is untenable. The majority exaggerates when it claims that the "inexcusable neglect" formulation—which this Court has never applied in an abuse-of-the-writ decision—functions as an independent standard for evaluating a petitioner's failure to raise a claim in a previous habeas application. It is true that compared its own analysis to the analysis in which established that a district court should deny an evidentiary hearing if the habeas petitioner inexcusably neglected to develop factual evidence in state proceedings. See Townsend, however, expressly equated "inexcusable neglect" with the "deliberate bypass" test of See 372 U. S., at *516 317.[5] But even if "inexcusable neglect" does usefully describe a class of abuses separate from deliberate abandonment, the melding of "cause and prejudice" into the abuse-of-the-writ doctrine cannot be defended as a means of "giving content" to "inexcusable neglect." Ante, at 490. For under ' strict-liability standard, mere attorney negligence is never excusable. See 477 U. S., at Confirmation that the majority today exercises legislative power not properly belonging to this Court is supplied by Congress' own recent consideration and rejection of an amendment to 2244(b). It is axiomatic that this Court does not function as a backup legislature for the reconsideration of failed attempts to amend existing statutes. See ; ; see also North Haven Bd. of Yet that is exactly the effect of today's decision. As reported out of the House Committee on the Judiciary, 1303 of H. R. 5269, 101st Cong., 2d Sess. would have required dismissal of any second or subsequent application by a habeas petitioner under sentence of death unless the petitioner *517 raised a new claim "the factual basis of [which] could not have been discovered by the exercise of reasonable diligence," H. R. Rep. No. 101-681, pt. 1, p. 29 (emphasis added).[6] The Committee Report accompanying this legislation explained that "courts have properly construed section 2244(b) and Rule 9(b) as codifications of the guidelines the [Supreme] Court itself prescribed in" The Report justified adoption of the tougher "reasonable diligence" standard on the ground that "[t]he guidelines have not. satisfactorily met concerns that death row prisoners may file second or successive habeas corpus applications as a means of extending litigation." Unfazed by Congress' rejection of this legislation, the majority arrogates to itself the power to repeal and to replace it with a tougher standard.[7] B Even if the fusion of cause-and-prejudice into the abuse-of-the-writ doctrine were not foreclosed by the will of Congress, the majority fails to demonstrate that such a rule would be a wise or just exercise of the Court's common-lawmaking discretion. In fact, the majority's abrupt change in law subverts the policies underlying 2244(b) and unfairly prejudices the petitioner in this case. The majority premises adoption of the cause-and-prejudice test almost entirely on the importance of "finality." See ante, at 490-493. At best, this is an insufficiently developed justification for cause-and-prejudice or any other possible conception of the abuse-of-the-writ doctrine. For the very *518 essence of the Great Writ is our criminal justice system's commitment to suspending "[c]onventional notions of finality of litigation where life or liberty is at stake and infringement of constitutional rights is alleged." To recognize this principle is not to make the straw-man claim that the writ must be accompanied by "[a] procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude." Ante, at 492, quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, Rather, it is only to point out the plain fact that we may not, "[u]nder the guise of fashioning a procedural rule, wip[e] out the practical efficacy of a jurisdiction conferred by Congress on the District Courts." The majority seeks to demonstrate that cause-and-prejudice strikes an acceptable balance between the State's interest in finality and the purposes of habeas corpus by analogizing the abuse-of-the-writ doctrine to the procedural-default doctrine. According to the majority, these two doctrines "implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review." Ante, at 490-491. And because this Court has already deemed cause-and-prejudice to be an appropriate standard for assessing procedural defaults, the majority reasons, the same standard should be used for assessing the failure to raise a claim in a previous habeas petition. See ante, at 490-493. This analysis does not withstand scrutiny. This Court's precedents on the procedural-default doctrine identify two purposes served by the cause-and-prejudice test. The first purpose is to promote respect for a State's legitimate procedural rules. See, e. g., ; -90. As the Court has explained, the willingness of a habeas court to entertain a claim that a state court has deemed to be procedurally barred "undercut[s] the *519 State's ability to enforce its procedural rules," and may cause "state courts themselves [to be] less stringent in their enforcement," See generally Meltzer, State Court Forfeitures of Federal Rights, The second purpose of the cause-and-prejudice test is to preserve the connection between federal collateral review and the general "deterrent" function served by the Great Writ. "[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards." quoting ; see Obviously, this understanding of the disciplining effect of federal habeas corpus presupposes that a criminal defendant has given the state trial and appellate courts a fair opportunity to pass on his constitutional claims. See ; With regard to both of these purposes, the strictness of the cause-and-prejudice test has been justified on the ground that the defendant's procedural default is akin to an independent and adequate state-law ground for the judgment of conviction. See Neither of these concerns is even remotely implicated in the abuse-of-the-writ setting. The abuse-of-the-writ doctrine clearly contemplates a situation in which a petitioner (as in this case) has complied with applicable state-procedural rules and effectively raised his constitutional claim in state proceedings; were it otherwise, the abuse-of-the-writ doctrine would not perform a screening function independent from that performed by the procedural-default doctrine and by the requirement that a habeas petitioner exhaust his state remedies, see 28 U.S. C. 2254(b), (c). Cf. ante, at 486-487. Because the abuse-of-the-writ doctrine presupposes that the *520 petitioner has effectively raised his claim in state proceedings, a decision by the habeas court to entertain the claim notwithstanding its omission from an earlier habeas petition will neither breed disrespect for state-procedural rules nor unfairly subject state courts to federal collateral review in the absence of a state-court disposition of a federal claim.[8] Because the abuse-of-the-writ doctrine addresses the situation in which a federal habeas court must determine whether to hear a claim withheld from another federal habeas court, the test for identifying an abuse must strike an appropriate balance between finality and review in that setting. Only when informed by does 2244(b) strike an efficient balance. A habeas petitioner's own interest in liberty furnishes a powerful incentive to assert in his first petition all claims that the petitioner (or his counsel) believes have a reasonable prospect for success. See Note, ; see also ' bar on the later assertion of claims omitted in bad faith adequately fortifies this natural incentive. At the same time, however, the petitioner faces an effective disincentive to asserting any claim that he believes does not have a reasonable prospect for * success: the adverse adjudication of such a claim will bar its reassertion under the successive-petition doctrine, see 28 U.S. C. 2244(b); whereas omission of the claim will not prevent the petitioner from asserting the claim for the first time in a later petition should the discovery of new evidence or the advent of intervening changes in law invest the claim with merit, S. Rep. No. 7, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427. The cause-and-prejudice test destroys this balance. By design, the cause-and-prejudice standard creates a near-irrebuttable presumption that omitted claims are permanently barred. This outcome not only conflicts with Congress' intent that a petitioner be free to avail himself of newly discovered evidence or intervening changes in law, S. Rep. No. 7, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427, but also subverts the statutory disincentive to the assertion of frivolous claims. Rather than face the cause-and-prejudice bar, a petitioner will assert all conceivable claims, whether or not these claims reasonably appear to have merit. The possibility that these claims will be adversely adjudicated and thereafter be barred from relitigation under the successive-petition doctrine will not effectively discourage the petitioner from asserting them, for the petitioner will have virtually no expectation that any withheld claim could be revived should his assessment of its merit later prove mistaken. Far from promoting efficiency, the majority's rule thus invites the very type of "baseless claims," ante, at 493, that the majority seeks to avert. The majority's adoption of the cause-and-prejudice test is not only unwise, but also manifestly unfair. The proclaimed purpose of the majority's new strict-liability standard is to increase to the maximum extent a petitioner's incentive to investigate all conceivable claims before filing his first petition. See ante, at 498. Whatever its merits, this was not the rule when the petitioner in this case filed his first petition. *522 From the legislative history of 2244(b) and Rule 9(b) and from the universal agreement of courts and commentators, see McCleskey's counsel could have reached no other conclusion but that his investigatory efforts in preparing his client's petition would be measured against the good-faith standard. There can be little question that his efforts satisfied that test; indeed, the District Court expressly concluded that McCleskey's counsel on his first habeas conducted a reasonable and competent investigation before concluding that a claim based on would be without factual foundation. See App. 84-85; see also infra, at 526. Before today, that would have been enough. The Court's utter indifference to the injustice of retroactively applying its new, strict-liability standard to this habeas petitioner stands in marked contrast to this Court's eagerness to protect States from the unfair surprise of "new rules" that enforce the constitutional rights of citizens charged with criminal wrongdoing. See 412-4 ; ; -310 This injustice is compounded by the Court's activism in fashioning its new rule. The applicability of ' cause-and-prejudice test was not litigated in either the District Court or the Court of Appeals. The additional question that we requested the parties to address reasonably could have been read to relate merely to the burden of proof under the abuse-of-the-writ doctrine;[9] it evidently did not put the parties on notice that this Court was contemplating a change in the governing legal standard, since respondent did not even mention or cause-and-prejudice in his brief or at oral *523 argument, much less request the Court to adopt this standard.[10] In this respect, too, today's decision departs from norms that inform the proper judicial function. See ; accord, Granfinanciera, S. It cannot be said that McCleskey had a fair opportunity to challenge the reasoning that the majority today invokes to strip him of his Massiah claim. III The manner in which the majority applies its new rule is as objectionable as the manner in which the majority creates that rule. As even the majority acknowledges, see ante, at 470, the standard that it announces today is not the one employed by the Court of Appeals, which purported to rely on see See ante, at 470. Where, as here, application of a different standard from the one applied by the lower court requires an in-depth review of the record, the ordinary course is to remand so that the parties have a fair opportunity to address, and the lower court to consider, all of the relevant issues. See, e. g., ; ; see also United (Court should not undertake record-review "function that can better be performed by other judges"). *524 A remand would have been particularly appropriate in this case in view of the patent deficiencies in the reasoning of the Court of Appeals. The Court of Appeals concluded that McCleskey deliberately abandoned his Massiah claim because his counsel "made a knowing choice not to pursue the claim after having raised it" unsuccessfully on state collateral review. This reasoning, which the majority declines to endorse, is obviously faulty. As I have explained, the abuse-of-the-writ doctrine is independent from the procedural-default and exhaustion doctrines; 2244(b) and Rule 9(b) contemplate a habeas petitioner who has effectively presented his claim in state proceedings but withheld that claim from a previous habeas application. Because 2244(b) and Rule 9(b) authorize the district court to consider such a claim under appropriate circumstances, it cannot be the case that a petitioner invariably abuses the writ by consciously failing to include in his first habeas petition a claim raised in state proceedings. Insofar as Congress intended that the district court excuse the withholding of a claim when the petitioner produces newly discovered evidence or intervening changes in law, S. Rep. No. 7, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427, a petitioner cannot be deemed to have deliberately abandoned the claim in an earlier habeas proceeding unless the petitioner was aware then of the evidence and law that support the claim. See, e. g., Wong 265 U. S., If the Court of Appeals had properly applied it would almost certainly have agreed with the District Court's conclusion that McCleskey was not aware of the evidence that supported his Massiah claim when he filed his first petition. In any case, because the Court of Appeals' reversal was based on an erroneous application of the majority's decision not to remand cannot be justified on the ground that the Court of Appeals would necessarily have decided the case the same way under the cause-and-prejudice standard. *525 Undaunted by the difficulty of applying its new rule without the benefit of any lower court's preliminary consideration, the majority forges ahead to perform its own independent review of the record. The majority concludes that McCleskey had no cause to withhold his Massiah claim because all of the evidence supporting that claim was available before he filed his first habeas petition. The majority purports to accept the District Court's finding that Offie Evans' 21-page statement was, at that point, being held beyond McCleskey's reach. See ante, at 498, and n.[11] But the State's failure to produce this document, the majority explains, furnished no excuse for McCleskey's failure to assert his Massiah claim "because McCleskey participated in the conversations reported by Evans," and therefore "knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police." Ante, at 500. The majority also points out that no *526 external force impeded McCleskey's discovery of the testimony of jailer Worthy. See To appreciate the hollowness — and the dangerousness — of this reasoning, it is necessary to recall the District Court's central finding: that the State did covertly plant Evans in an adjoining cell for the purpose of eliciting incriminating statements that could be used against McCleskey at trial. See App. 83. Once this finding is credited, it follows that the State affirmatively misled McCleskey and his counsel throughout their unsuccessful pursuit of the Massiah claim in state collateral proceedings and their investigation of that claim in preparing for McCleskey's first federal habeas proceeding. McCleskey's counsel deposed or interviewed the assistant district attorney, various jailers, and other government officials responsible for Evans' confinement, all of whom denied any knowledge of an agreement between Evans and the State. See App. 25-28, 44-47, 79, 85. Against this background of deceit, the State's withholding of Evans' 21-page statement assumes critical importance. The majority overstates McCleskey's and his counsel's awareness of the statement's contents. For example, the statement relates that state officials were present when Evans made a phone call at McCleskey's request to McCleskey's girlfriend, Plaintiff's Exh. 8, p. a fact that McCleskey and his counsel had no reason to know and that strongly supports the District Court's finding of an ab initio relationship between Evans and the State. But in any event, the importance of the statement lay much less in what the statement said than in its simple existence. Without the statement, McCleskey's counsel had nothing more than his client's testimony to back up counsel's own suspicion of a possible Massiah violation; given the state officials' adamant denials of any arrangement with Evans, and given the state habeas court's rejection of the Massiah claim, counsel quite reasonably concluded that raising this claim in McCleskey's first habeas petition would be futile. All this changed once *527 counsel finally obtained the statement, for at that point, there was credible, independent corroboration of counsel's suspicion. This additional evidence not only gave counsel the reasonable expectation of success that had previously been lacking, but also gave him a basis for conducting further investigation into the underlying claim. Indeed, it was by piecing together the circumstances under which the statement had been transcribed that McCleskey's counsel was able to find Worthy, a state official who was finally willing to admit that Evans had been planted in the cell adjoining McCleskey's.[12] The majority's analysis of this case is dangerous precisely because it treats as irrelevant the effect that the State's disinformation strategy had on counsel's assessment of the reasonableness of pursing the Massiah claim. For the majority, all that matters is that no external obstacle barred McCleskey from finding Worthy. But obviously, counsel's decision even to look for evidence in support of a particular claim has to be informed by what counsel reasonably perceives to be the prospect that the claim may have merit; in this case, by withholding the 21-page statement and by affirmatively misleading counsel as to the State's involvement with Evans, state officials created a climate in which McCleskey's first habeas counsel was perfectly justified in focusing his attentions elsewhere. The sum and substance of the majority's analysis is that McCleskey had no "cause" for failing to assert the Massiah claim because he did not try *528 hard enough to pierce the State's veil of deception. Because the majority excludes from its conception of cause any recognition of how state officials can distort a petitioner's reasonable perception of whether pursuit of a particular claim is worthwhile, the majority's conception of "cause" creates an incentive for state officials to engage in this very type of misconduct. Although the majority finds it unnecessary to reach the question whether McCleskey was "prejudiced" by the Massiah violation in this case, I have no doubt that the admission of Evans' testimony at trial satisfies any fair conception of this prong of the test. No witness from the furniture store was able to identify which of the four robbers shot the off-duty police officer. The State did put on evidence that McCleskey had earlier stolen the pearl-handled pistol that was determined to be the likely murder weapon, but the significance of this testimony was clouded by a codefendant's admission that he had been carrying this weapon for weeks at a time, App. 16, and by a prosecution witness' own prior statement that she had seen only the codefendant carry the pistol, at 11-. See also Outside of the self-serving and easily impeachable testimony of the codefendant, the only evidence that directly supported the State's identification of McCleskey as the triggerman was the testimony of Evans. As the District Court found, "Evans' testimony about the petitioner's incriminating statements was critical to the state's case." Without it, the jury might very well have reached a different verdict. Thus, as I read the record, McCleskey should be entitled to the consideration of his petition for habeas corpus even under the cause-and-prejudice test. The case is certainly close enough to warrant a remand so that the issues can be fully and fairly briefed. *529 IV Ironically, the majority seeks to defend its doctrinal innovation on the ground that it will promote respect for the "rule of law." Ante, at 492. Obviously, respect for the rule of law must start with those who are responsible for pronouncing the law. The majority's invocation of "the orderly administration of justice," ante, at 496, rings hollow when the majority itself tosses aside established precedents without explanation, disregards the will of Congress, fashions rules that defy the reasonable expectations of the persons who must conform their conduct to the law's dictates, and applies those rules in a way that rewards state misconduct and deceit. Whatever "abuse of the writ" today's decision is designed to avert pales in comparison with the majority's own abuse of the norms that inform the proper judicial function. I dissent.

Justice Marshall

concurring

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.

https://www.courtlistener.com/opinion/109952/new-motor-vehicle-bd-of-cal-v-orrin-w-fox-co/

https://www.courtlistener.com/api/rest/v3/clusters/109952/

1978-010

Although I join the opinion of the Court, I write separately to emphasize why, in my view, the California Automobile Franchise Act is not violative of the Due Process Clause. As the Court observes, ante, at 100-103, the California statute, like its state and federal counterparts, seeks to redress the disparity in economic power between automobile manufacturers and their franchisees. By empowering the New Motor Vehicle Board to superintend the establishment or relocation of a franchise, the statute makes it more difficult for a manufacturer to force its franchisees to accept unfair conditions of trade by threatening to overload their markets with intrabrand competitors.[1] *112 This litigation arises because of the delay necessarily incident to the Board's inquiry. Given the unavoidable time lag between the filing of protests and the Board's hearing, the State had to elect whether to permit the establishment or relocation of dealerships pending the Board's determination of their legality. To enjoin temporarily the proposed transactions would deprive new dealers and their franchisors of legitimate profits in cases where the dealership was eventually approved. On the other hand, allowing the transactions to go forward would force existing franchisees to bear the burden of illegal competition in cases where the Board ultimately disapproved the new dealership. Perhaps because the policy of redressing the economic imbalance between franchisees and manufacturers would be thwarted if existing franchisees were left unprotected until the Board made its decision, the California Legislature chose the former option.[2] Assuming appellees' interest in immediately opening or relocating a franchise implicates the Due Process Clause, I do not believe it outweighs the interest of the State in protecting existing franchisees from unfair competition and economic coercion pending completion of the Board's inquiry. See Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970); Board of Regents v. Roth, 408 U.S. 564, 570-571 (1972). The state legislature has decided to impose the burdens of delay on appellees rather than on existing franchisees. In view of the substantial public interest at stake and the short lapse of *113 time between notice and hearing, the Due Process Clause does not dictate a contrary legislative decision. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE POWELL joins, concurring in the result. I agree with the Court when it concludes (a) that the District Court rightly refused to abstain under the rule of Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941); (b) that the appellees' delegation-of-power argument is unmeritorious; and (c) that the appellees' antitrust claims are also without merit. We are concerned here, basically, only with the issue of the facial constitutionality of certain provisions of the California Automobile Franchise Act, Cal. Veh. Code Ann. §§ 3062, 3063 (West Supp. 1978); we are not confronted with any issue of constitutionality of the Act as applied. It seems to me that we should recognize forthrightly the fact that California, under its Act, accords the manufacturer and the would-be franchisee no process at all prior to telling them not to franchise at will. This utter absence of process would indicate that the State's action is free from attack on procedural due process grounds only if the manufacturer and the franchisee possess no liberty or property interest protected under the Fourteenth Amendment. Indeed, that is the way I would analyze the case. Meyer v. Nebraska, 262 U.S. 390, 399 (1923), of course, defined "liberty" to include "the right . . . to engage in any of the common occupations of life." The California statute, however, does not deprive anyone of any realistic freedom to become an automobile dealer or to grant a franchise; it simply regulates the location of franchises to sell certain makes of cars in certain geographical areas. The absence of regulation by California prior to the Act's adoption in 1973 surely in itself created no liberty interest susceptible of later deprivation. And the abstract expectation of a new franchise does not qualify as a property interest. *114 I regard this litigation as not focusing on procedural due process at all. Instead, it centers essentially on a claim of substantive due process. Appellees have conceded that California may legitimately regulate automobile franchises and that the State may legitimately provide a hearing as part of its regulatory scheme. The only issue, then, is whether California may declare that the status quo is to be maintained pending a hearing. In my view, California's declaration to this effect is no more than a necessary incident of its power to regulate at all. Maintenance of the status quo pending final agency action is common in many regulatory contexts. The situation here, for example, is not dissimilar to the widely adopted routine of withholding the effectiveness of announced increases in utility rates until specified conditions have been fulfilled. In asserting a right to franchise at will and a right to franchise without delay, appellees are essentially asserting a right to be free from state economic regulation. But any claim the appellees may have to be free from state economic regulation is foreclosed by the substantive due process cases, such as Ferguson v. Skrupa, 372 U.S. 726 (1963), which the Court cites. To summarize: For me, the appellees have demonstrated the presence of no liberty or property interest; having none, they have no claim to procedural safeguards; and their claim to be free from state economic regulation is foreclosed by the substantive due process cases. Perhaps this is what the Court is saying in its opinion. I am, however, somewhat unsure of that. I prefer to recognize the facts head on; when one does, the answer, it seems to me, is inevitable and immediately forthcoming. MR.

Although I join the opinion of the Court, I write separately to emphasize why, in my view, the California Automobile Franchise Act is not violative of the Due Process Clause. As the Court observes, ante, at 100-103, the California statute, like its state and federal counterparts, seeks to redress the disparity in economic power between automobile manufacturers and their franchisees. By empowering the New Motor Vehicle Board to superintend the establishment or relocation of a franchise, the statute makes it more difficult for a manufacturer to force its franchisees to accept unfair conditions of trade by threatening to overload their markets with intrabrand competitors.[1] *112 This litigation arises because of the delay necessarily incident to the Board's inquiry. Given the unavoidable time lag between the filing of protests and the Board's hearing, the State had to elect whether to permit the establishment or relocation of dealerships pending the Board's determination of their legality. To enjoin temporarily the proposed transactions would deprive new dealers and their franchisors of legitimate profits in cases where the dealership was eventually approved. On the other hand, allowing the transactions to go forward would force existing franchisees to bear the burden of illegal competition in cases where the Board ultimately disapproved the new dealership. Perhaps because the policy of redressing the economic imbalance between franchisees and manufacturers would be thwarted if existing franchisees were left unprotected until the Board made its decision, the California Legislature chose the former option.[2] Assuming appellees' interest in immediately opening or relocating a franchise implicates the Due Process Clause, I do not believe it outweighs the interest of the State in protecting existing franchisees from unfair competition and economic coercion pending completion of the Board's inquiry. See ; Board of The state legislature has decided to impose the burdens of delay on appellees rather than on existing franchisees. In view of the substantial public interest at stake and the short lapse of *113 time between notice and hearing, the Due Process Clause does not dictate a contrary legislative decision. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE POWELL joins, concurring in the result. I agree with the Court when it concludes (a) that the District Court rightly refused to abstain under the rule of Railroad ; (b) that the appellees' delegation-of-power argument is unmeritorious; and (c) that the appellees' antitrust claims are also without merit. We are concerned here, basically, only with the issue of the facial constitutionality of certain provisions of the California Automobile Franchise Act, Cal. Veh. Code Ann. 3062, 3063 (West Supp. 1978); we are not confronted with any issue of constitutionality of the Act as applied. It seems to me that we should recognize forthrightly the fact that California, under its Act, accords the manufacturer and the would-be franchisee no process at all prior to telling them not to franchise at will. This utter absence of process would indicate that the State's action is free from attack on procedural due process grounds only if the manufacturer and the franchisee possess no liberty or property interest protected under the Fourteenth Amendment. Indeed, that is the way I would analyze the case. of course, defined "liberty" to include "the right to engage in any of the common occupations of life." The California statute, however, does not deprive anyone of any realistic freedom to become an automobile dealer or to grant a franchise; it simply regulates the location of franchises to sell certain makes of cars in certain geographical areas. The absence of regulation by California prior to the Act's adoption in 1973 surely in itself created no liberty interest susceptible of later deprivation. And the abstract expectation of a new franchise does not qualify as a property interest. *114 I regard this litigation as not focusing on procedural due process at all. Instead, it centers essentially on a claim of substantive due process. Appellees have conceded that California may legitimately regulate automobile franchises and that the State may legitimately provide a hearing as part of its regulatory scheme. The only issue, then, is whether California may declare that the status quo is to be maintained pending a hearing. In my view, California's declaration to this effect is no more than a necessary incident of its power to regulate at all. Maintenance of the status quo pending final agency action is common in many regulatory contexts. The situation here, for example, is not dissimilar to the widely adopted routine of withholding the effectiveness of announced increases in utility rates until specified conditions have been fulfilled. In asserting a right to franchise at will and a right to franchise without delay, appellees are essentially asserting a right to be free from state economic regulation. But any claim the appellees may have to be free from state economic regulation is foreclosed by the substantive due process cases, such as which the Court cites. To summarize: For me, the appellees have demonstrated the presence of no liberty or property interest; having none, they have no claim to procedural safeguards; and their claim to be free from state economic regulation is foreclosed by the substantive due process cases. Perhaps this is what the Court is saying in its opinion. I am, however, somewhat unsure of that. I prefer to recognize the facts head on; when one does, the answer, it seems to me, is inevitable and immediately forthcoming. MR.

Justice Kennedy

majority

Heller v. Doe

https://www.courtlistener.com/opinion/112896/heller-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/112896/

1992-107

In the Commonwealth of Kentucky, involuntary civil commitments of those alleged to be mentally retarded and of those alleged to be mentally ill are governed by separate statutory procedures. Two differences between these commitment proceedings are at issue in this case. First, at *315 a final commitment hearing, the applicable burden of proof for involuntary commitment based on mental retardation is clear and convincing evidence, Ky. Rev. Stat. Ann. § 202B.160(2) (Michie 1991), while the standard for involuntary commitment based on mental illness is beyond a reasonable doubt, § 202A.076(2). Second, in commitment proceedings for mental retardation, unlike for mental illness, "[g]uardians and immediate family members" of the subject of the proceedings "may participate . . . as if a party to the proceedings," with all attendant rights, including the right to present evidence and to appeal. § 202B.160(3). Respondents are a class of mentally retarded persons committed involuntarily to Kentucky institutions. They argue that these distinctions are irrational and violate the Equal Protection Clause of the Fourteenth Amendment. They claim also that granting close family members and guardians the status of parties violates the Due Process Clause. We reject these contentions and hold the Kentucky statutes constitutional. I This case has a long and complicated history. It began in 1982 when respondents filed suit against petitioner, the Kentucky Secretary of the Cabinet for Human Resources, claiming that Kentucky's failure to provide certain procedural protections before institutionalizing people on the basis of mental retardation violated the Constitution. Kentucky has amended its civil commitment statutes several times since 1982, with each new statute being attacked in court by respondents. As the previous incarnations of this lawsuit have little effect on the issues currently before this Court, we limit our discussion to the current round of the litigation. See Doe v. Cowherd, 770 F. Supp. 354, 355-356 (WD Ky. 1991) (recounting the procedural history). At issue here are elements of Kentucky's statutory procedures, enacted in 1990, for the involuntary commitment of the mentally retarded. In many respects the procedures *316 governing commitment of the mentally retarded and the mentally ill are parallel. The statutes recognize a large class of persons who can petition for an individual's involuntary commitment, whether on grounds of mental retardation or mental illness. Ky. Rev. Stat. Ann. § 202B.100(3) (Michie 1991) (mental retardation); § 202A.051 (mental illness). Upon filing of the petition, the trial court must appoint counsel to represent the individual in question, unless he retains private counsel. § 202B.210 (mental retardation); § 202A.121 (mental illness). The trial court also must examine the person who filed the petition and, if there is probable cause to believe that the individual who is the subject of the petition should be involuntarily committed, the court must order his examination by two qualified professionals. §§ 202B.100(5), (6)(c) (mental retardation); §§ 202A.051(5), (6)(c) (mental illness). The subject of the proceeding has the right to retain a professional of his own choosing, who may "witness and participate in any examination" of him. § 202B.140 (mental retardation); § 202A.066 (mental illness). In cases of commitment for mental retardation, a professional retained by the subject's "parent or guardian" also must be permitted to witness and participate in any examination. § 202B.140. If both qualified professionals certify that the individual meets the criteria for involuntary commitment, the trial court must conduct a preliminary hearing. § 202B.130 (mental retardation); § 202A.061 (mental illness). At the hearing, the court must receive as evidence the reports of these two professionals and any other professional retained under the statute. § 202B.160(1) (mental retardation); § 202A.076(1) (mental illness). The individual whose commitment is sought may testify and may call and cross-examine witnesses. § 202B.160(1) (mental retardation); § 202A.076(1) (mental illness). In cases of mental retardation, at both the preliminary hearing and, if there is one, the final hearing, *317 Kentucky law provides particular rights to guardians and immediate family members: "Guardians and immediate family members of the respondent shall be allowed to attend all hearings, conferences or similar proceedings; may be represented by private counsel, if desired; may participate in the hearings or conferences as if a party to the proceedings; may cross-examine witnesses if desired; and shall have standing to appeal any adverse decision." § 202B.160(3) See also § 202B.230. If the trial court determines that there is probable cause to believe that the subject should be involuntarily committed, it proceeds to a final hearing. § 202B.100(8) (mental retardation); § 202A.051(9) (mental illness). At the final hearing, the State, through the county attorney for the county in which the person subject to the proceeding lives, prosecutes the petition, § 202B.019 (mental retardation); § 202A.016 (mental illness); Tr. of Oral Arg. 33-35, and counsel for the person defends against institutionalization, id., at 31, 34, 54. At this hearing, "[t]he manner of proceeding and the rules of evidence shall be the same as those in any criminal proceeding." § 202B.160(2) (mental retardation); § 202A.076(2) (mental illness). As in the preliminary hearing, the subject of the proceedings may testify and call and cross-examine witnesses. § 202B.160(2) (mental retardation); § 202A.076(2) (mental illness). In proceedings for commitment based on mental retardation, the standard of proof is clear and convincing evidence, § 202B.160(2); for mental illness, the standard is proof beyond a reasonable doubt, § 202A.076(2). For commitment of the mentally retarded, four propositions must be proved by clear and convincing evidence: "(1) The person is a mentally retarded person; (2) The person presents a danger or a threat of danger to self, family, or others; (3) The least restrictive alternative mode of treatment presently available requires placement in [a *318 residential treatment center]; and (4) Treatment that can reasonably benefit the person is available in [a residential treatment center]." § 202B.040. The criteria for commitment of the mentally ill are in substance identical, requiring proof beyond a reasonable doubt that an individual "is a mentally ill person: (1) Who presents a danger or threat of danger to self, family or others as a result of the mental illness; (2) Who can reasonably benefit from treatment; and (3) For whom hospitalization is the least restrictive alternative mode of treatment presently available." § 202A.026. Appeals from involuntary commitment proceedings are taken in the same manner as other appeals from the trial court. § 202B.230 (mental retardation); § 202A.141 (mental illness). After enactment of the 1990 modifications, respondents moved for summary judgment in their pending lawsuit against petitioner. They argued, among other things, that the differences in treatment between the mentally retarded and the mentally ill—the different standards of proof and the right of immediate family members and guardians to participate as parties in commitment proceedings for the mentally retarded but not the mentally ill—violated the Equal Protection Clause's prohibition of distinctions that lack a rational basis, and that participation by family members and guardians violated the Due Process Clause. The District Court for the Western District of Kentucky accepted these arguments and granted summary judgment to respondents on these and other grounds not at issue here, 770 F. Supp. 354 (1991), and the Court of Appeals for the Sixth Circuit affirmed, Doe v. Cowherd, 965 F.2d 109 (1992). We granted Kentucky's petition for certiorari, 506 U.S. 939 (1992), and now reverse. II Respondents contend that, in evaluating the constitutionality of the distinctions drawn by Kentucky's statutes, we should apply not rational-basis review, but some form of *319 heightened scrutiny. Brief for Respondents 23-32. This claim is not properly presented. Respondents argued before the District Court and the Court of Appeals only that Kentucky's statutory scheme was subject to rational-basis review, and the courts below ruled on that ground. Indeed, respondents have conceded that they pressed their heightened scrutiny argument for the first time in their merits brief in this Court. Id., at 23 ("[R]espondents did not argue this particular issue below . . ."). Even if respondents were correct that heightened scrutiny applies, it would be inappropriate for us to apply that standard here. Both parties have been litigating this case for years on the theory of rational-basis review, which, as noted below, see infra, at 320, does not require the State to place any evidence in the record, let alone the extensive evidentiary showing that would be required for these statutes to survive heightened scrutiny. It would be imprudent and unfair to inject a new standard at this stage in the litigation. See Tennessee v. Dunlap, 426 U.S. 312, 316, n. 3 (1976); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 215 (1976). We therefore decide this case as it has been presented to the courts whose judgments are being reviewed. III We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). See also, e. g., Dandridge v. Williams, 397 U.S. 471, 486 (1970). Nor does it authorize "the judiciary [to] sitas a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. *320 See, e. g., Beach Communications, supra, at 314-315; Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988); Hodel v. Indiana, 452 U.S. 314, 331-332 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (per curiam). Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. See, e. g., Nordlinger v. Hahn, 505 U.S. 1, 11 (1992); Dukes, supra, at 303. Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." Nordlinger, supra, at 15. See also, e. g., United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528 (1959). Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Beach Communications, supra, at 313. See also, e. g., Nordlinger, supra, at 11; Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Fritz, supra, at 174-179; Vance v. Bradley, 440 U.S. 93, 111 (1979); Dandridge v. Williams, supra, at 484-485. A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Beach Communications, supra, at 315. See also, e. g., Vance v. Bradley, supra, at 111; Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812 (1976); Locomotive Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 139 (1968). A statute is presumed constitutional, see supra, at 319, and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (internal quotation marks omitted), whether or not the basis has a foundation in the *321 record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "`is not made with mathematical nicety or because in practice it results in some inequality.'" Dandridge v. Williams, supra, at 485, quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911). "The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific." Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70 (1913). See also, e. g., Burlington Northern R. Co. v. Ford, 504 U.S. 648, 651 (1992); Vance v. Bradley, supra, at 108, and n. 26; New Orleans v. Dukes, supra, at 303; Schweiker v. Wilson, 450 U.S. 221, 234 (1981). We have applied rational-basis review in previous cases involving the mentally retarded and the mentally ill. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Schweiker v. Wilson, supra. In neither case did we purport to apply a different standard of rational-basis review from that just described. True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation. That requirement is satisfied here. Kentucky has proffered more than adequate justifications for the differences in treatment between the mentally retarded and the mentally ill. A Kentucky argues that a lower standard of proof in commitments for mental retardation follows from the fact that mental retardation is easier to diagnose than is mental illness. That general proposition should cause little surprise, for mental retardation is a developmental disability that becomes apparent before adulthood. See American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders *322 29 (3d rev. ed. 1987) (hereinafter Manual of Mental Disorders); American Assn. on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support 5, 16-18 (9th ed. 1992) (hereinafter Mental Retardation); S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 16-17, 37 (3d ed. 1985) (hereinafter Mentally Disabled); Ky. Rev. Stat. Ann. § 202B.010(9) (Michie 1991). By the time the person reaches 18 years of age the documentation and other evidence of the condition have been accumulated for years. Mental illness, on the other hand, may be sudden and may not occur, or at least manifest itself, until adulthood. See, e. g., Manual of Mental Disorders 190 (onset of schizophrenia may occur any time during adulthood); id., at 220, 229 (onset of depression usually is during adulthood). Furthermore, as we recognized in an earlier case, diagnosis of mental illness is difficult. See Addington v. Texas, 441 U.S. 418, 430 (1979). See also Mentally Disabled 18. Kentucky's basic premise that mental retardation is easier to diagnose than is mental illness has a sufficient basis in fact. See, e. g., id., at 16; Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 438-439 (1985). This difference between the two conditions justifies Kentucky's decision to assign a lower standard of proof in commitment proceedings involving the mentally retarded. In assigning the burden of proof, Kentucky was determining the "risk of error" faced by the subject of the proceedings. Addington v. Texas, supra, at 423. If diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has the condition in question.[1] See G. Keppel, Design and Analysis 65-68 (1973). *323 From the diagnostic standpoint alone, Kentucky's differential burdens of proof (as well as the other statutory distinction at issue, see infra, at 328-329) are rational. There is, moreover, a "reasonably conceivable state of facts," Beach Communications, 508 U. S., at 313, from which Kentucky could conclude that the second prerequisite to commitment—that "[t]he person presents a danger or a threat of danger to self, family, or others," Ky. Rev. Stat. Ann. § 202B.040 (Michie 1991)—is established more easily, as a general rule, in the case of the mentally retarded. Previous instances of violent behavior are an important indicator of future violent tendencies. See, e. g., J. Monahan, The Clinical Prediction of Violent Behavior 71-72 (1981) (hereinafter Monahan); Kozol, Boucher, & Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime & Delinquency 371, 384 (1972). Mental retardation is a permanent, relatively static condition, see Mentally Disabled 37, so a determination of dangerousness may be made with some accuracy based on previous behavior. We deal here with adults only, so almost by definition in the case of the retarded there is an 18-year record upon which to rely. This is not so with the mentally ill. Manifestations of mental illness may be sudden, and past behavior may not be an adequate predictor of future actions. Prediction of future behavior is complicated as well by the difficulties inherent *324 in diagnosis of mental illness. Developments in the Law-Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1242-1243 (1974). It is thus no surprise that many psychiatric predictions of future violent behavior by the mentally ill are inaccurate. See, e. g., Steadman, Employing Psychiatric Predictions of Dangerous Behavior: Policy vs. Fact, in Dangerous Behavior: A Problem in Law and Mental Health 123, 125-128 (C. Frederick ed. 1978); Monahan 47-49. For these reasons, it would have been plausible for Kentucky to conclude that the dangerousness determination was more accurate as to the mentally retarded than the mentally ill. A statutory classification fails rational-basis review only when it "`rests on grounds wholly irrelevant to the achievement of the State's objective.' " Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71 (1978), quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961). See also, e. g., McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809 (1969); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552, 556 (1947). Because ease of diagnosis is relevant to two of the four inquiries, it is not "wholly irrelevant" to the achievement of Kentucky's objective, and thus the statutory difference in the applicable burden of proof survives rational-basis review. In any event, it is plausible for Kentucky to have found that, for purposes of determining the acceptable risk of error, diagnosis and dangerousness are the most critical factors in the commitment decision, so the appropriate burden of proof should be tied to them. There is a further, more far-reaching rationale justifying the different burdens of proof: The prevailing methods of treatment for the mentally retarded, as a general rule, are much less invasive than are those given the mentally ill. The mentally ill are subjected to medical and psychiatric treatment which may involve intrusive inquiries into the patient's innermost thoughts, see Meissner & Nicholi, The Psychotherapies: *325 Individual, Family, and Group, in The Harvard Guide to Modern Psychiatry 357-385 (A. Nicholi ed. 1978) (hereinafter Harvard Guide), and use of psychotropic drugs, see Baldessarini, Chemotherapy, in Harvard Guide 387-431; Berger, Medical Treatment of Mental Illness, 200 Science 974 (1978); Mentally Disabled 327-330; Brief for American Psychological Association as Amicus Curiae in Washington v. Harper, O. T. 1988, No. 88-599, pp. 10-11. By contrast, the mentally retarded in general are not subjected to these medical treatments. Rather, "`because mental retardation is . . . a learning disability and training impairment rather than an illness,'" Youngberg v. Romeo, 457 U.S. 307, 309, n. 1 (1982), quoting Brief for American Psychiatric Association as Amicus Curiae in Youngberg v. Romeo, O. T. 1981, No. 80-1429, p. 4, n. 1, the mentally retarded are provided "habilitation," which consists of education and training aimed at improving self-care and self-sufficiency skills. See Youngberg, supra, at 309, n. 1; M. Rosen, G. Clark, & M. Kivitz, Habilitation of the Handicapped 47-59 (1977); Mentally Disabled 332. It is true that the loss of liberty following commitment for mental illness and mental retardation may be similar in many respects; but the different treatment to which a committed individual is subjected provides a rational basis for Kentucky to decide that a greater burden of proof is needed before a person may be committed for mental illness. The procedures required before the government acts often depend on the nature and extent of the burden or deprivation to be imposed. See Addington v. Texas, 441 U. S., at 423-424. For example, because confinement in prison is punitive and hence more onerous than confinement in a mental hospital, id., at 428, the Due Process Clause subjects the former to proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970), whereas it requires in the latter case only clear and convincing evidence, Addington v. Texas, supra. It may also be true that some persons committed for mental retardation are subjected to more intrusive treatments while *326 confined. See post, at 342-346 (Souter, J., dissenting). Nonetheless, it would have been plausible for the Kentucky Legislature to believe that most mentally retarded individuals who are committed receive treatment that is different from, and less invasive than, that to which the mentally ill are subjected. "States are not required to convince the courts of the correctness of their legislative judgments." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). Thus, since "`the question is at least debatable,' " Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 674 (1981), quoting United States v. Carolene Products Co., 304 U.S. 144, 154 (1938), rationalbasis review permits a legislature to use just this sort of generalization. These distinctions may explain, too, the differences in treatment between the mentally retarded and the mentally ill that have long existed in Anglo-American law. At English common law there was a "marked distinction" in the treatment accorded "idiots" (the mentally retarded) and "lunatics" (the mentally ill). 1 F. Pollock & F. Maitland, The History of English Law 481 (2d ed. 1909) (hereinafter Pollack and Maitland). As Blackstone explained, a retarded person became a ward of the King, who had a duty to preserve the individual's estate and provide him with "necessaries," but the King could profit from the wardship. In contrast, the King was required to "provide for the custody and sustentation of [the mentally ill], and preserve their lands and the profits of them," but the King was prohibited from profiting thereby. 1 W. Blackstone, Commentaries *302-*304. See Pollack and Maitland 481; S. Herr, Rights and Advocacy for Retarded People 9-10 (1983). Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. That the law has long treated the classes as distinct, however, suggests that there is a commonsense distinction between the mentally *327 retarded and the mentally ill. The differentiation continues to the present day. A large majority of States have separate involuntary commitment laws for the two groups,[2]*328 and many States as well have separate agencies for addressing their needs.[3] Kentucky's burden of proof scheme, then, can be explained by differences in the ease of diagnosis and the accuracy of the prediction of future dangerousness and by the nature of the treatment received after commitment. Each of these rationales, standing on its own, would suffice to establish a rational basis for the distinction in question. B There is a rational basis also for the other distinction challenged by respondents: that Kentucky allows close relatives *329 and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As we have noted, see supra, at 321-322, by definition, mental retardation has its onset during a person's developmental period. Mental retardation, furthermore, results in "deficits or impairments in adaptive functioning," that is to say, "the person's effectiveness in areas such as social skills, communication, and daily living skills, and how well the person meets the standards of personal independence and social responsibility expected of his or her age by his or her cultural group." Manual of Mental Disorders 28-29. See also Mental Retardation 5-6, 15-16, 38-41. Based on these facts, Kentucky may have concluded that close relatives and guardians, both of whom likely have intimate knowledge of a mentally retarded person's abilities and experiences, have valuable insights that should be considered during the involuntary commitment process. Mental illness, by contrast, may arise or manifest itself with suddenness only after minority, see supra, at 322, when the afflicted person's immediate family members have no knowledge of the medical condition and have long ceased to provide care and support. Further, determining the proper course of treatment may be far less dependent upon observations made in a household setting. Indeed, we have noted the severe difficulties inherent in psychiatric diagnosis conducted by experts in the field. Addington v. Texas, 441 U. S., at 430. See also Mentally Disabled 18. In addition, adults previously of sound mental health who are diagnosed as mentally ill may have a need for privacy that justifies the State in confining a commitment proceeding to the smallest group compatible with due process. Based on these facts, Kentucky may have concluded that participation as parties by relatives and guardians of the mentally ill would not in most cases have been of sufficient help to the trier of fact to justify the additional burden and complications of granting party status. To be sure, Kentucky could have provided relatives *330 and guardians of the mentally retarded some participation in commitment proceedings by methods short of providing them status as parties. That, however, is irrelevant in rational-basis review. We do not require Kentucky to have chosen the least restrictive means of achieving its legislative end. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 51 (1973). As long as Kentucky "rationally advances a reasonable and identifiable governmental objective, we must disregard" the existence of alternative methods of furthering the objective "that we, as individuals, perhaps would have preferred." Schweiker v. Wilson, 450 U. S., at 235. IV We turn now to respondents' claim that one aspect of the involuntary commitment procedures violates procedural due process. We note at the outset that respondents challenge as violative of due process only those provisions of Kentucky's comprehensive involuntary commitment procedures that allow participation in the proceedings by guardians and immediate family members. See Ky. Rev. Stat. Ann. §§ 202B.140, 202B.160(3), 202B.230 (Michie 1991). Respondents claim that by allowing the participation of persons whose interests may be adverse to those of the individual facing possible involuntary commitment, the statute "skews the balance" against the retarded individual and therefore imposes a burden on him. Brief for Respondents 32-36. Both courts below apparently accepted this argument, almost without explanation. See 965 F.2d, at 113; 770 F. Supp., at 358. In our view, the claim is without merit. We evaluate the sufficiency of this procedural rule under Mathews v. Eldridge, 424 U.S. 319 (1976). There we held that determining the dictates of due process requires consideration of three factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation *331 of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335. We think that application of the Mathews v. Eldridge factors compels the conclusion that participation as parties by close relatives and legal guardians is not a deprivation of due process. Even if parents, close family members, or legal guardians can be said in certain instances to have interests "adverse to [those of] the person facing commitment," 965 F.2d, at 113, we simply do not understand how their participation as formal parties in the commitment proceedings increases "the risk of an erroneous deprivation," 424 U.S., at 335, of respondents' liberty interest. Rather, for the reasons explained, supra, at 329, these parties often will have valuable information that, if placed before the court, will increase the accuracy of the commitment decision. Kentucky law, moreover, does not allow intervention by persons who lack a personal stake in the outcome of the adjudication. Guardians have a legal obligation to further the interests of their wards, and parents and other close relatives of a mentally retarded person, after living with and caring for the individual for 18 years or more, have an interest in his welfare that the State may acknowledge. See Parham v. J. R., 442 U.S. 584, 602-603 (1979). For example, parents who for 18 years or longer have cared for a retarded child can face changed circumstances resulting from their own advancing age, when the physical, emotional, and financial costs of caring for the adult child may become too burdensome for the child's best interests to be served by care in their home. There is no support whatever in our cases or our legal tradition for the "statist notion," id., at 603, that the State's expertise and concern in these matters is so superior to that of parents and other close family members that the State must *332 slam the courthouse door against those interested enough to intervene. Finally, "the state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable . . . to care for themselves," as well as "authority under its police power to protect the community" from any dangerous mentally retarded persons. Addington, 441 U. S., at 426. To be sure, if the additional parties involved in the proceedings favor commitment, their participation may increase the chances that the result of the proceeding will be a decision to commit. That fact, however, is beside the point. "The Due Process Clause does not . . . require a State to adopt one procedure over another on the basis that it may produce results more favorable to" the party challenging the existing procedures. Medina v. California, 505 U.S. 437, 451 (1992). "The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." Greenholtz v. Inmates of Neb. Penal and Cor- rectional Complex, 442 U.S. 1, 13 (1979). See also Fuentes v. Shevin, 407 U.S. 67, 97 (1972) (due process functions to "prevent unfair and mistaken deprivations"). At least to the extent protected by the Due Process Clause, the interest of a person subject to governmental action is in the accurate determination of the matters before the court, not in a result more favorable to him. So long as the accuracy of the adjudication is unaffected, therefore, the Due Process Clause does not prevent a State from allowing the intervention of immediate family members and legal guardians, *333 even if in some instances these parties will have interests adverse to those of the subject of the proceedings. Neither respondents nor their amici have suggested that accuracy would suffer from the intervention allowed by Kentucky law, and as noted above we think quite the opposite is true. Because allowing guardians and immediate family members to participate as parties in commitment proceedings increases the accuracy of those proceedings and implements the State's interest in providing family members a voice in the proceedings, without undermining those interests of the individual protected by the Due Process Clause, these Kentucky statutes do not run afoul of due process. "We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution." Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 855-856 (1977). V In sum, there are plausible rationales for each of the statutory distinctions challenged by respondents in this case. It could be that "[t]he assumptions underlying these rationales [are] erroneous, but the very fact that they are `arguable' is sufficient, on rational-basis review, to `immunize' the [legislative] choice from constitutional challenge." Beach Communications, 508 U. S., at 320, quoting Vance v. Bradley, 440 U. S., at 112.[4] *334 The judgment of the Court of Appeals for the Sixth Circuit is Reversed. Justice O'Connor, concurring in the judgment in part and dissenting in part. I agree with Justice Souter that Kentucky's differential standard of proof for committing the mentally ill and the mentally retarded is irrational and therefore join Part II of his opinion. I conclude, however, that there is a rational basis for permitting close relatives and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As the Court points out, there are sufficiently plausible and legitimate reasons for the legislative determination in this area. I also agree with the Court that allowing guardians and immediate family members to participate as parties in commitment proceedings does not violate procedural due process. Like my colleagues, I would not reach the question whether heightened equal protection scrutiny should be applied to the Kentucky scheme.

In the Commonwealth of Kentucky, involuntary civil commitments of those alleged to be mentally retarded and of those alleged to be mentally ill are governed by separate statutory procedures. Two differences between these commitment proceedings are at issue in this case. First, at *315 a final commitment hearing, the applicable burden of proof for involuntary commitment based on mental retardation is clear and convincing evidence, Ky. Rev. Stat. Ann. 202B.160(2) while the standard for involuntary commitment based on mental illness is beyond a reasonable doubt, 202A.076(2). Second, in commitment proceedings for mental retardation, unlike for mental illness, "[g]uardians and immediate family members" of the subject of the proceedings "may participate as if a party to the proceedings," with all attendant rights, including the right to present evidence and to appeal. 202B.160(3). Respondents are a class of mentally retarded persons committed involuntarily to Kentucky institutions. They argue that these distinctions are irrational and violate the Equal Protection Clause of the Fourteenth Amendment. They claim also that granting close family members and guardians the status of parties violates the Due Process Clause. We reject these contentions and hold the Kentucky statutes constitutional. I This case has a long and complicated history. It began in 1982 when respondents filed suit against petitioner, the Kentucky Secretary of the Cabinet for Human Resources, claiming that Kentucky's failure to provide certain procedural protections before institutionalizing people on the basis of mental retardation violated the Constitution. Kentucky has amended its civil commitment statutes several times since 1982, with each new statute being attacked in court by respondents. As the previous incarnations of this lawsuit have little effect on the issues currently before this Court, we limit our discussion to the current round of the litigation. See At issue here are elements of Kentucky's statutory procedures, enacted in 1990, for the involuntary commitment of the mentally retarded. In many respects the procedures *316 governing commitment of the mentally retarded and the mentally ill are parallel. The statutes recognize a large class of persons who can petition for an individual's involuntary commitment, whether on grounds of mental retardation or mental illness. Ky. Rev. Stat. Ann. 202B.100(3) (mental retardation); 202A.0 (mental illness). Upon filing of the petition, the trial court must appoint counsel to represent the individual in question, unless he retains private counsel. 202B.210 (mental retardation); 202A.121 (mental illness). The trial court also must examine the person who filed the petition and, if there is probable cause to believe that the individual who is the subject of the petition should be involuntarily committed, the court must order his examination by two qualified professionals. 202B.100(5), (6)(c) (mental retardation); 202A.0(5), (6)(c) (mental illness). The subject of the proceeding has the right to retain a professional of his own choosing, who may "witness and participate in any examination" of him. 202B.140 (mental retardation); 202A.066 (mental illness). In cases of commitment for mental retardation, a professional retained by the subject's "parent or guardian" also must be permitted to witness and participate in any examination. 202B.140. If both qualified professionals certify that the individual meets the criteria for involuntary commitment, the trial court must conduct a preliminary hearing. 202B.0 (mental retardation); 202A.061 (mental illness). At the hearing, the court must receive as evidence the reports of these two professionals and any other professional retained under the statute. 202B.160(1) (mental retardation); 202A.076(1) (mental illness). The individual whose commitment is sought may testify and may call and cross-examine witnesses. 202B.160(1) (mental retardation); 202A.076(1) (mental illness). In cases of mental retardation, at both the preliminary hearing and, if there is one, the final hearing, *317 Kentucky law provides particular rights to guardians and immediate family members: "Guardians and immediate family members of the respondent shall be allowed to attend all hearings, conferences or similar proceedings; may be represented by private counsel, if desired; may participate in the hearings or conferences as if a party to the proceedings; may cross-examine witnesses if desired; and shall have standing to appeal any adverse decision." 202B.160(3) See also 202B.230. If the trial court determines that there is probable cause to believe that the subject should be involuntarily committed, it proceeds to a final hearing. 202B.100(8) (mental retardation); 202A.0(9) (mental illness). At the final hearing, the State, through the county attorney for the county in which the person subject to the proceeding lives, prosecutes the petition, 202B.019 (mental retardation); 202A.016 (mental illness); Tr. of Oral Arg. 33-35, and counsel for the person defends against institutionalization, At this hearing, "[t]he manner of proceeding and the rules of evidence shall be the same as those in any criminal proceeding." 202B.160(2) (mental retardation); 202A.076(2) (mental illness). As in the preliminary hearing, the subject of the proceedings may testify and call and cross-examine witnesses. 202B.160(2) (mental retardation); 202A.076(2) (mental illness). In proceedings for commitment based on mental retardation, the standard of proof is clear and convincing evidence, 202B.160(2); for mental illness, the standard is proof beyond a reasonable doubt, 202A.076(2). For commitment of the mentally retarded, four propositions must be proved by clear and convincing evidence: "(1) The person is a mentally retarded person; (2) The person presents a danger or a threat of danger to self, family, or others; (3) The least restrictive alternative mode of treatment presently available requires placement in [a *318 residential treatment center]; and (4) Treatment that can reasonably benefit the person is available in [a residential treatment center]." 202B.040. The criteria for commitment of the mentally ill are in substance identical, requiring proof beyond a reasonable doubt that an individual "is a mentally ill person: (1) Who presents a danger or threat of danger to self, family or others as a result of the mental illness; (2) Who can reasonably benefit from treatment; and (3) For whom hospitalization is the least restrictive alternative mode of treatment presently available." 202A.026. Appeals from involuntary commitment proceedings are taken in the same manner as other appeals from the trial court. 202B.230 (mental retardation); 202A.141 (mental illness). After enactment of the 1990 modifications, respondents moved for summary judgment in their pending lawsuit against petitioner. They argued, among other things, that the differences in treatment between the mentally retarded and the mentally ill—the different standards of proof and the right of immediate family members and guardians to participate as parties in commitment proceedings for the mentally retarded but not the mentally ill—violated the Equal Protection Clause's prohibition of distinctions that lack a rational basis, and that participation by family members and guardians violated the Due Process Clause. The District Court for the Western District of Kentucky accepted these arguments and granted summary judgment to respondents on these and other grounds not at issue here, and the Court of Appeals for the Sixth Circuit affirmed, We granted Kentucky's petition for certiorari, and now reverse. II Respondents contend that, in evaluating the constitutionality of the distinctions drawn by Kentucky's statutes, we should apply not rational-basis review, but some form of *319 heightened scrutiny. Brief for Respondents 23-32. This claim is not properly presented. Respondents argued before the District Court and the Court of Appeals only that Kentucky's statutory scheme was subject to rational-basis review, and the courts below ruled on that ground. Indeed, respondents have conceded that they pressed their heightened scrutiny argument for the first time in their merits brief in this Court. Even if respondents were correct that heightened scrutiny applies, it would be inappropriate for us to apply that standard here. Both parties have been litigating this case for years on the theory of rational-basis review, which, as noted below, see infra, at 320, does not require the State to place any evidence in the record, let alone the extensive evidentiary showing that would be required for these statutes to survive heightened scrutiny. It would be imprudent and unfair to inject a new standard at this stage in the litigation. See ; Ernst & We therefore decide this case as it has been presented to the courts whose judgments are being reviewed. III We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." See also, e. g., Nor does it authorize "the judiciary [to] sitas a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. *320 See, e. g., Beach ; ; ; Massachusetts Bd. of Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. See, e. g., ; at Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." See also, e. g., United States Railroad Retirement ; Allied Stores of Ohio, Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Beach at See also, e. g., at ; ; at 174-; 1 ; at 484-. A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Beach See also, e. g., at 1; ; Locomotive A statute is presumed constitutional, see and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the *321 record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "`is not made with mathematical nicety or because in practice it results in some inequality.'" at quoting (19). "The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific." Metropolis Theatre See also, e. g., Burlington Northern R. ; and n. 26; New at ; We have applied rational-basis review in previous cases involving the mentally retarded and the mentally ill. See ; In neither case did we purport to apply a different standard of rational-basis review from that just described. True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation. That requirement is satisfied here. Kentucky has proffered more than adequate justifications for the differences in treatment between the mentally retarded and the mentally ill. A Kentucky argues that a lower standard of proof in commitments for mental retardation follows from the fact that mental retardation is easier to diagnose than is mental illness. That general proposition should cause little surprise, for mental retardation is a developmental disability that becomes apparent before adulthood. See American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders *322 29 (3d rev. ed. 1987) (hereinafter Manual of Mental Disorders); American Assn. on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support 5, 16-18 (hereinafter Mental Retardation); S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 16-17, 37 (hereinafter Mentally Disabled); Ky. Rev. Stat. Ann. 202B.010(9) By the time the person reaches 18 years of age the documentation and other evidence of the condition have been accumulated for years. Mental illness, on the other hand, may be sudden and may not occur, or at least manifest itself, until adulthood. See, e. g., Manual of Mental Disorders 190 (onset of schizophrenia may occur any time during adulthood); Furthermore, as we recognized in an earlier case, diagnosis of mental illness is difficult. See See also Mentally Disabled 18. Kentucky's basic premise that mental retardation is easier to diagnose than is mental illness has a sufficient basis in fact. See, e. g., ; Ellis & Luckasson, Mentally Retarded Criminal Defendants, This difference between the two conditions justifies Kentucky's decision to assign a lower standard of proof in commitment proceedings involving the mentally retarded. In assigning the burden of proof, Kentucky was determining the "risk of error" faced by the subject of the proceedings. If diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has the condition in question.[1] See G. Keppel, Design and Analysis 65-68 *323 From the diagnostic standpoint alone, Kentucky's differential burdens of proof (as well as the other statutory distinction at issue, see infra, at 328-329) are rational. There is, moreover, a "reasonably conceivable state of facts," Beach 508 U. S., at from which Kentucky could conclude that the second prerequisite to commitment—that "[t]he person presents a danger or a threat of danger to self, family, or others," Ky. Rev. Stat. Ann. 202B.040 —is established more easily, as a general rule, in the case of the mentally retarded. Previous instances of violent behavior are an important indicator of future violent tendencies. See, e. g., J. Monahan, The Clinical Prediction of Violent Behavior -72 (hereinafter Monahan); Kozol, Boucher, & Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime & Delinquency 3, 384 Mental retardation is a permanent, relatively static condition, see Mentally Disabled 37, so a determination of dangerousness may be made with some accuracy based on previous behavior. We deal here with adults only, so almost by definition in the case of the retarded there is an 18-year record upon which to rely. This is not so with the mentally ill. Manifestations of mental illness may be sudden, and past behavior may not be an adequate predictor of future actions. Prediction of future behavior is complicated as well by the difficulties inherent *324 in diagnosis of mental illness. Developments in the Law-Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 90, It is thus no surprise that many psychiatric predictions of future violent behavior by the mentally ill are inaccurate. See, e. g., Steadman, Employing Psychiatric Predictions of Dangerous Behavior: Policy vs. Fact, in Dangerous Behavior: A Problem in Law and Mental Health 123, 125-128 (C. Frederick ed. 19); Monahan 47-49. For these reasons, it would have been plausible for Kentucky to conclude that the dangerousness determination was more accurate as to the mentally retarded than the mentally ill. A statutory classification fails rational-basis review only when it "`rests on grounds wholly irrelevant to the achievement of the State's objective.' " Holt Civic (19), quoting See also, e. g., ; Because ease of diagnosis is relevant to two of the four inquiries, it is not "wholly irrelevant" to the achievement of Kentucky's objective, and thus the statutory difference in the applicable burden of proof survives rational-basis review. In any event, it is plausible for Kentucky to have found that, for purposes of determining the acceptable risk of error, diagnosis and dangerousness are the most critical factors in the commitment decision, so the appropriate burden of proof should be tied to them. There is a further, more far-reaching rationale justifying the different burdens of proof: The prevailing methods of treatment for the mentally retarded, as a general rule, are much less invasive than are those given the mentally ill. The mentally ill are subjected to medical and psychiatric treatment which may involve intrusive inquiries into the patient's innermost thoughts, see Meissner & Nicholi, The Psychotherapies: *325 Individual, Family, and Group, in The Harvard Guide to Modern Psychiatry 357-385 (A. Nicholi ed. 19) (hereinafter Harvard Guide), and use of psychotropic drugs, see Baldessarini, Chemotherapy, in Harvard Guide 387-431; Berger, Medical Treatment of Mental Illness, 200 Science 4 (19); Mentally Disabled 327-330; Brief for American Psychological Association as Amicus Curiae in Washington v. Harper, O. T. 1988, No. 88-599, pp. 10-. By contrast, the mentally retarded in general are not subjected to these medical treatments. Rather, "`because mental retardation is a learning disability and training impairment rather than an illness,'" quoting Brief for American Psychiatric Association as Amicus Curiae in O. T. 1981, No. 80-1429, p. 4, n. 1, the mentally retarded are provided "habilitation," which consists of education and training aimed at improving self-care and self-sufficiency skills. See at ; M. Rosen, G. Clark, & M. Kivitz, Habilitation of the Handicapped 47-59 (17); Mentally Disabled 332. It is true that the loss of liberty following commitment for mental illness and mental retardation may be similar in many respects; but the different treatment to which a committed individual is subjected provides a rational basis for Kentucky to decide that a greater burden of proof is needed before a person may be committed for mental illness. The procedures required before the government acts often depend on the nature and extent of the burden or deprivation to be imposed. See 441 U. S., -424. For example, because confinement in prison is punitive and hence more onerous than confinement in a mental hospital, the Due Process Clause subjects the former to proof beyond a reasonable doubt, In re Winship, whereas it requires in the latter case only clear and convincing evidence, It may also be true that some persons committed for mental retardation are subjected to more intrusive treatments while *326 confined. See post, at 342-346 (Souter, J., dissenting). Nonetheless, it would have been plausible for the Kentucky Legislature to believe that most mentally retarded individuals who are committed receive treatment that is different from, and less invasive than, that to which the mentally ill are subjected. "States are not required to convince the courts of the correctness of their legislative judgments." Thus, since "`the question is at least debatable,' " Western & Southern Life Ins. quoting United rationalbasis review permits a legislature to use just this sort of generalization. These distinctions may explain, too, the differences in treatment between the mentally retarded and the mentally ill that have long existed in Anglo-American law. At English common law there was a "marked distinction" in the treatment accorded "idiots" (the mentally retarded) and "lunatics" (the mentally ill). 1 F. Pollock & F. Maitland, The History of English Law 481 (2d ed. 1909) (hereinafter Pollack and Maitland). As Blackstone a retarded person became a ward of the King, who had a duty to preserve the individual's estate and provide him with "necessaries," but the King could profit from the wardship. In contrast, the King was required to "provide for the custody and sustentation of [the mentally ill], and preserve their lands and the profits of them," but the King was prohibited from profiting thereby. 1 W. Blackstone, Commentaries *302-*304. See Pollack and Maitland 481; S. Herr, Rights and Advocacy for Retarded People 9-10 (1983). Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. That the law has long treated the classes as distinct, however, suggests that there is a commonsense distinction between the mentally *327 retarded and the mentally ill. The differentiation continues to the present day. A large majority of States have separate involuntary commitment laws for the two groups,[2]*328 and many States as well have separate agencies for addressing their needs.[3] Kentucky's burden of proof scheme, then, can be by differences in the ease of diagnosis and the accuracy of the prediction of future dangerousness and by the nature of the treatment received after commitment. Each of these rationales, standing on its own, would suffice to establish a rational basis for the distinction in question. B There is a rational basis also for the other distinction challenged by respondents: that Kentucky allows close relatives *329 and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As we have noted, see by definition, mental retardation has its onset during a person's developmental period. Mental retardation, furthermore, results in "deficits or impairments in adaptive functioning," that is to say, "the person's effectiveness in areas such as social skills, communication, and daily living skills, and how well the person meets the standards of personal independence and social responsibility expected of his or her age by his or her cultural group." Manual of Mental Disorders 28-29. See also Mental Retardation 5-6, 15-16, 38-41. Based on these facts, Kentucky may have concluded that close relatives and guardians, both of whom likely have intimate knowledge of a mentally retarded person's abilities and experiences, have valuable insights that should be considered during the involuntary commitment process. Mental illness, by contrast, may arise or manifest itself with suddenness only after minority, see when the afflicted person's immediate family members have no knowledge of the medical condition and have long ceased to provide care and support. Further, determining the proper course of treatment may be far less dependent upon observations made in a household setting. Indeed, we have noted the severe difficulties inherent in psychiatric diagnosis conducted by experts in the field. 441 U. S., at See also Mentally Disabled 18. In addition, adults previously of sound mental health who are diagnosed as mentally ill may have a need for privacy that justifies the State in confining a commitment proceeding to the smallest group compatible with due process. Based on these facts, Kentucky may have concluded that participation as parties by relatives and guardians of the mentally ill would not in most cases have been of sufficient help to the trier of fact to justify the additional burden and complications of granting party status. To be sure, Kentucky could have provided relatives *330 and guardians of the mentally retarded some participation in commitment proceedings by methods short of providing them status as parties. That, however, is irrelevant in rational-basis review. We do not require Kentucky to have chosen the least restrictive means of achieving its legislative end. San Antonio Independent School 4 U.S. 1, As long as Kentucky "rationally advances a reasonable and identifiable governmental objective, we must disregard" the existence of alternative methods of furthering the objective "that we, as individuals, perhaps would have preferred." 450 U. S., 5. IV We turn now to respondents' claim that one aspect of the involuntary commitment procedures violates procedural due process. We note at the outset that respondents challenge as violative of due process only those provisions of Kentucky's comprehensive involuntary commitment procedures that allow participation in the proceedings by guardians and immediate family members. See Ky. Rev. Stat. Ann. 202B.140, 202B.160(3), 202B.230 Respondents claim that by allowing the participation of persons whose interests may be adverse to those of the individual facing possible involuntary commitment, the statute "skews the balance" against the retarded individual and therefore imposes a burden on him. Brief for Respondents 32-36. Both courts below apparently accepted this argument, almost without explanation. See 965 F.2d, at 3; In our view, the claim is without merit. We evaluate the sufficiency of this procedural rule under There we held that determining the dictates of due process requires consideration of three factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation *331 of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." We think that application of the factors compels the conclusion that participation as parties by close relatives and legal guardians is not a deprivation of due process. Even if parents, close family members, or legal guardians can be said in certain instances to have interests "adverse to [those of] the person facing commitment," 965 F.2d, at 3, we simply do not understand how their participation as formal parties in the commitment proceedings increases "the risk of an erroneous deprivation," 424 U.S., of respondents' liberty interest. Rather, for the reasons these parties often will have valuable information that, if placed before the court, will increase the accuracy of the commitment decision. Kentucky law, moreover, does not allow intervention by persons who lack a personal stake in the outcome of the adjudication. Guardians have a legal obligation to further the interests of their wards, and parents and other close relatives of a mentally retarded person, after living with and caring for the individual for 18 years or more, have an interest in his welfare that the State may acknowledge. See For example, parents who for 18 years or longer have cared for a retarded child can face changed circumstances resulting from their own advancing age, when the physical, emotional, and financial costs of caring for the adult child may become too burdensome for the child's best interests to be served by care in their home. There is no support whatever in our cases or our legal tradition for the "statist notion," that the State's expertise and concern in these matters is so superior to that of parents and other close family members that the State must *332 slam the courthouse door against those interested enough to intervene. Finally, "the state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves," as well as "authority under its police power to protect the community" from any dangerous mentally retarded persons. To be sure, if the additional parties involved in the proceedings favor commitment, their participation may increase the chances that the result of the proceeding will be a decision to commit. That fact, however, is beside the point. "The Due Process Clause does not require a State to adopt one procedure over another on the basis that it may produce results more favorable to" the party challenging the existing procedures. 4 "The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." See also At least to the extent protected by the Due Process Clause, the interest of a person subject to governmental action is in the accurate determination of the matters before the court, not in a result more favorable to him. So long as the accuracy of the adjudication is unaffected, therefore, the Due Process Clause does not prevent a State from allowing the intervention of immediate family members and legal guardians, *333 even if in some instances these parties will have interests adverse to those of the subject of the proceedings. Neither respondents nor their amici have suggested that accuracy would suffer from the intervention allowed by Kentucky law, and as noted above we think quite the opposite is true. Because allowing guardians and immediate family members to participate as parties in commitment proceedings increases the accuracy of those proceedings and implements the State's interest in providing family members a voice in the proceedings, without undermining those interests of the individual protected by the Due Process Clause, these Kentucky statutes do not run afoul of due process. "We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution." (17). V In sum, there are plausible rationales for each of the statutory distinctions challenged by respondents in this case. It could be that "[t]he assumptions underlying these rationales [are] erroneous, but the very fact that they are `arguable' is sufficient, on rational-basis review, to `immunize' the [legislative] choice from constitutional challenge." Beach quoting 440 U. S., at 2.[4] *334 The judgment of the Court of Appeals for the Sixth Circuit is Reversed. Justice O'Connor, concurring in the judgment in part and dissenting in part. I agree with Justice Souter that Kentucky's differential standard of proof for committing the mentally ill and the mentally retarded is irrational and therefore join Part II of his opinion. I conclude, however, that there is a rational basis for permitting close relatives and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As the Court points out, there are sufficiently plausible and legitimate reasons for the legislative determination in this area. I also agree with the Court that allowing guardians and immediate family members to participate as parties in commitment proceedings does not violate procedural due process. Like my colleagues, I would not reach the question whether heightened equal protection scrutiny should be applied to the Kentucky scheme.

Justice Powell

concurring

Carter v. Kentucky

https://www.courtlistener.com/opinion/110426/carter-v-kentucky/

https://www.courtlistener.com/api/rest/v3/clusters/110426/

1980-051

Although joining the opinion of the Court, I write briefly to make clear that, for me, this result is required by precedent, not by what I think the Constitution should require. The Fifth Amendment, applicable to the States through the Fourteenth, provides that no person "shall be compelled in any criminal case to be a witness against himself." The question in Griffin v. California, 380 U.S. 609 (1965), was whether this proscription was violated if jurors were told that they could draw inferences from a defendant's failure to testify. The Court held that neither the judge nor the prosecutor could suggest that jurors draw such inferences. *306 A defendant who chooses not to testify hardly can claim that he was compelled to testify. The Court also held, nevertheless, that any "penalty imposed by courts for exercising [this] constitutional privilege" cannot be tolerated because "[i]t cuts down on the privilege by making its assertion costly." Id., at 614. JUSTICE STEWART'S dissenting opinion in Griffin, in which JUSTICE WHITE joined, responded persuasively to this departure from the language and purpose of the Self-Incrimination Clause. JUSTICE STEWART wrote: "We must determine whether the petitioner has been `compelled . . . to be a witness against himself.' Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. . . . "I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. . . . [T]he jury will, of course, realize th[e] quite evident fact [that the defendant has chosen not to testify], even though the choice goes unmentioned." Id., at 620-621. The one person who usually knows most about the critical facts is the accused. For reasons deeply rooted in the history we share with England, the Bill of Rights included the Self-Incrimination Clause, which enables a defendant in a criminal trial to elect to make no contribution to the fact-finding process. But nothing in the Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances. Jurors have been instructed that the defendant is presumed to be innocent and that this presumption can be overridden only by *307 evidence beyond a reasonable doubt. California Chief Justice Traynor commented that judges and prosecutors should be able to explain that "a jury [may] draw unfavorable inferences from the defendant's failure to explain or refute evidence when he could reasonably be expected to do so. Such comment would not be evidence and would do no more than make clear to the jury the extent of its freedom in drawing inferences." Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 677 (1966); accord, Schaefer, Police Interrogation and the Privilege Against Self-Incrimination, 61 Nw. U. L. Rev. 506, 520 (1966). I therefore would have joined JUSTICES STEWART and WHITE in dissent in Griffin. But Griffin is now the law, and based on that case the present petitioner was entitled to the jury instruction that he requested. I therefore join the opinion of the Court.

Although joining the opinion of the Court, I write briefly to make clear that, for me, this result is required by precedent, not by what I think the Constitution should require. The Fifth Amendment, applicable to the States through the Fourteenth, provides that no person "shall be compelled in any criminal case to be a witness against himself." The question in was whether this proscription was violated if jurors were told that they could draw inferences from a defendant's failure to testify. The Court held that neither the judge nor the prosecutor could suggest that jurors draw such inferences. *306 A defendant who chooses not to testify hardly can claim that he was compelled to testify. The Court also held, nevertheless, that any "penalty imposed by courts for exercising [this] constitutional privilege" cannot be tolerated because "[i]t cuts down on the privilege by making its assertion costly." JUSTICE STEWART'S dissenting opinion in Griffin, in which JUSTICE WHITE joined, responded persuasively to this departure from the language and purpose of the Self-Incrimination Clause. JUSTICE STEWART wrote: "We must determine whether the petitioner has been `compelled to be a witness against himself.' Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. "I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. [T]he jury will, of course, realize th[e] quite evident fact [that the defendant has chosen not to testify], even though the choice goes unmentioned." The one person who usually knows most about the critical facts is the accused. For reasons deeply rooted in the history we share with England, the Bill of Rights included the Self-Incrimination Clause, which enables a defendant in a criminal trial to elect to make no contribution to the fact-finding process. But nothing in the Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances. Jurors have been instructed that the defendant is presumed to be innocent and that this presumption can be overridden only by *307 evidence beyond a reasonable doubt. California Chief Justice Traynor commented that judges and prosecutors should be able to explain that "a jury [may] draw unfavorable inferences from the defendant's failure to explain or refute evidence when he could reasonably be expected to do so. Such comment would not be evidence and would do no more than make clear to the jury the extent of its freedom in drawing inferences." Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, ; accord, Schaefer, Police Interrogation and the Privilege Against Self-Incrimination, I therefore would have joined JUSTICES STEWART and WHITE in dissent in Griffin. But Griffin is now the law, and based on that case the present petitioner was entitled to the jury instruction that he requested. I therefore join the opinion of the Court.

Justice Stevens

dissenting

Stewart v. Abend

https://www.courtlistener.com/opinion/112420/stewart-v-abend/

https://www.courtlistener.com/api/rest/v3/clusters/112420/

1989-071

The Constitution authorizes the Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . ." U. S. Const. Art. I, § 8, Cl. 8. Section 6 of the Copyright Act of 1909, 35 Stat. 1077, 17 U.S. C. § 7 (1976 ed.) (hereafter § 7), furthers that purpose; § 23 of that Act, 17 U.S. C. § 24 (1976 ed.) (hereafter § 24), as construed by the Court in this case, does not. It is therefore appropriate to begin with § 7.[1] I In a copyright case, as in any other case, the language of the statute provides the starting point. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989); Mills Music, Inc. v. Snyder, 469 U.S. 153, 164 (1985). Section 7 provides in pertinent part: "Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of *240 works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works . . . shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." This statutory provision deals with derivative works — works that include both old material and new material. The plain language of § 7 confers on the entire derivative work — not just the new material contained therein — the status of all other works of authorship, that of "new works subject to copyright under the provisions of this title." Among those rights is that specified in § 3 of the 1909 Act, 17 U.S. C. § 3 (1976 ed.), which applies both to composite and derivative works and states that "the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright." In turn, under § 1, 17 U.S. C. § 1 (1976 ed.), the author or proprietor of the copyright has the right to distribute and publicly perform the copyrighted derivative work. §§ 1(a), 1(d).[2] The statute does not say *241 anything about the duration of the copyright being limited to the underlying work's original term; rather, derivative works made with the consent of the author and derivative works based on matter in the public domain are treated identically. They are both given independent copyright protection. Section 7, read together with § 3, plainly indicates that the copyright on a derivative work extends to both the new material and that "in which copyright is already subsisting." § 3. The author or proprietor of the derivative work therefore has the statutory right to publish and distribute the entire work.[3] The structure of § 7 confirms this reading. The statute does not merely provide the derivative author with a right to copyright but goes on to set limitations and conditions on that copyright. The statute makes "the consent of the proprietor of the [underlying] copyright" a precondition for copyright of the derivative work, a provision that would make little sense if the copyright provided by § 7 did not derogate in some manner from the underlying author's copyright rights.[4] The *242 statute also directs that the right granted the derivative work proprietor should not "be construed to imply an exclusive right to such use of the original works," suggesting, by negative implication, that it should be read to include a non-exclusive right to use of the original works. The provision that publication "shall not affect the force or validity of any subsisting copyright" also suggests that publication would otherwise have the capacity to affect the force or validity of the original copyright: By publishing the derivative work *243 without satisfying the notice requirements of the Act, the derivative author would dedicate to the public not only his own original contribution, but also that of the original author. Conversely, the limitation that publication does not "secure or extend copyright in such original works" would be unnecessary if the copyrighted derivative work did not include within it some of the material covered by the earlier copyright, or if the term of the derivative copyright did not extend beyond the life of the original copyright.[5] Although the derivative copyright protects only the new material contained within the new work, that limitation is not the product of the limited extent of the copyright — which encompasses both new and old material — but rather of the specific statutory language restricting its effect against third parties.[6] *244 Any other interpretation would render the provision largely surplusage. The Copyright Act of 1909 elsewhere accords protection to "all the writings of an author," § 4, including dramatic composition, § 5, and long before the Act of 1909, it was recognized that the additions and improvements to existing works of art were subject to copyright as original works of authorship.[7] Congress would hardly have needed to provide for the copyright of derivative works, including the detailed provisions on the limit of that copyright, if it intended only to accord protection to the improvements to an original work of authorship. In my opinion, § 7 was intended to do something more: to give the original author the power *245 to sell the right to make a derivative work that upon creation and copyright would be completely independent of the original work. II The statutory background supports the conclusion that Congress intended the original author to be able to sell the right to make a derivative work that could be distributed for the full term of the derivative work's copyright protection. At the time of the enactment of § 7, copyright in the right to dramatize a nondramatic work was a relatively recent innovation with equivocal support. Until 1870, an author had only the right to prevent the copying or vending of his work in the identical medium.[8] The Act of 1870, which gave the author the "sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending," made a limited start toward further protection, providing that "authors may reserve the right to dramatize or to translate their own works." Ch. 230, § 86, 16 Stat. 212. The identical language was carried over when the statute was revised in 1873. Rev. Stat. § 4952. The Act of 1891 was a landmark. It gave the same rights to the "author" as had the previous statutes, but provided further that "authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States." Ch. 565, § 4952, 26 Stat. 1107. The case law was in accord. Although courts were occasionally willing to enjoin abridgments as infringing, in 1853 Justice Grier wrote that a dramatization of the novel "Uncle Tom's Cabin" would not infringe *246 the author's rights in the book, see Stowe v. Thomas, 23 F. Cas. 201, 208 (No. 13,514) (CC ED Pa. 1853),[9] and it was not until after the passage of the 1909 Act that this Court first held that a copy of a literary work in another form than the original could infringe the author's copyright. See Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911).[10] *247 The drafts of the copyright bill, considered by the Conferences held by the Register of Copyrights and the Librarian of Congress in 1905 and 1906,[11] had three distinctive features with respect to derivative works: They provided a limited period of protection from the creation of derivative works during which a derivative work could only be created with "the consent of the author or his assigns," 2 Brylawski & Goldman, Part D, p. LXV;[12] they distinguished between the copyright term for original works of authorship and for derivative works, according the latter a shorter period of protection;[13] and, finally, they provided that derivative works produced with the consent of the original author would be considered new works entitled to copyright. Together these provisions reveal a more complicated set of theoretical premises than is commonly acknowledged. Although originality of authorship was an essential precondition of copyright, *248 the duration of the copyright term and the extent of copyright protection rested upon the nature of the work as a whole rather than the original expression contributed by the copyright author. Moreover, the consent of the underlying author to the production of a derivative work was to be encouraged and, once given, entitled the derivative work to independence from the work upon which it was based. The first two provisions were not included in the Copyright Act, which gave authors the right, during the full term of copyright, to create or consent to the creation of derivative works which would then enjoy their own copyright protection. But the third provision which set the conditions upon which an original author would consent and the second author would create a derivative work entitled to protection under the Copyright Act carried forward the view that the derivative copyright extended beyond the original contribution of the derivative author. Throughout the debates on the provision, the drafters of the Copyright Act evinced their understanding that the derivative copyright itself encompassed the whole derivative work. The first draft of § 7, considered by the second Conference in 1905, would have provided copyright as a new work for a derivative work "produced with the consent and authorization of the author of the original," without any restrictions on the effect of that copyright on the copyright in the original work. 2 Brylawski & Goldman. Part D, p. XXXII. By the time of the third Conference in 1906, the Register of Copyrights expressed his concern that that provision would be read too broadly, adding the proviso: "That the copyright thus secured shall not be construed to grant any exclusive right to such use of the original works, except as that may be obtained by agreement with the author or proprietor thereof." 3 id., Part E, p. LI. The implication was that, in the absence of an agreement, the author of the derivative work would have, as a matter of copyright law, a nonexclusive right "to such use of the original works." *249 The final draft presented to Congress at the end of 1906 addressed a parallel problem that the license to use the underlying material might also detract from the rights of the underlying copyright if the derivative author did not adequately protect the material on which the copyright was subsisting. To allay this concern, the Register added the language "no such copyright shall affect the force or validity of any subsisting copyright upon the matter employed or any part thereof." 1 id., Part B, p. 15. Two significant changes were made during the congressional hearings from 1907 through 1909, but with those exceptions the provision survived intact. First, in response to the objection that the language of § 6, codified at 17 U.S. C. § 7 (1976 ed.), in conjunction with that of § 3, codified at 17 U.S. C. § 3 (1976 ed.), would be read to give the derivative work proprietor "a new term of copyright running on this old matter of his" and, in that way, provide for perpetual copyright, 4 Brylawski & Goldman, Part J, pp. 132-138 (statement of Mr. Porterfeld); see also id., at 428, Congress limited the enforceability of the derivative copyright, adding language that publication of the dramatization would not "secure or extend copyright in such original works." § 6, 35 Stat. 1077. Second, in response to the objection that the Register's draft provision did not address with sufficient precision the possibility that failure of the derivative copyright would allow the underlying work to enter the public domain, Congress substituted the work "publication" for "copyright" in the "force or validity" clause. Congress thus made clear that it was the publication of the derivative work, not the copyright itself, that was not to "affect the force or validity of any subsisting copyright." Ibid.[14] *250 The legislative history confirms that the copyright in derivative works not only gives the second creative product the monopoly privileges of excluding others from the unconsented use of the new work, but also allows the creator to publish his or her own work product. The authority to produce the derivative work, which includes creative contributions by both the original author and the second artist, is dependent upon the consent of the proprietor of the underlying copyright. But once that consent has been obtained, and a derivative work has been created and copyrighted in accord with that consent, "a right of property spr[ings] into existence," Edmonds v. Stern, 248 F. 897, 898 (CA2 1918), that Congress intended to protect. Publication of the derivative work does not "affect the force or validity" of the underlying copyright except to the extent that it gives effect to the consent of the original proprietor. That owner — and in this case, the owner of a renewal of the original copyright — retains full dominion and control over all other means of exploiting that work of art, including the right to authorize other derivative works. The original copyright may have relatively little value because the creative contribution of the second artist is far more significant than the original contribution, *251 but that just means that the rewards for creativity are being fairly allocated between the two artists whose combined efforts produced the derivative work. III Nothing in § 24 requires a different result. The portion of that section dealing with copyright renewals provides: "[T]he author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, . . . shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright." 17 U.S. C. § 24 (1976 ed.). That statute limits the renewal rights in a copyright to the specified statutory beneficiaries, "completely dissevering the title, breaking up the continuance . . . and vesting an absolutely new title eo nomine in the persons designated." White-Smith Music Publishing Co. v. Goff, 187 F. 247, 250 (CA1 1911). Since copyright is a creature of statute and since the statute gives the author only a contingent estate, with "the widow, widower, or children" as remaindermen, the author "ha[s] only an expectancy to assign" for the second term. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 375 (1960). The original author may not sell more than he owns. He may not convey the second-term rights to print or copy the underlying work or to create additional derivative works from it. See Gilliam v. American Broadcasting Cos., 538 F.2d 14, 21 (CA2 1976); G. Ricordi & Co. v. Paramount Pictures Inc., 189 F.2d 469 (CA2), cert, denied, 342 U.S. 849 (1951).[15] Nor may the derivative author dedicate *252 the underlying art to the public by failing to renew his copyright. See Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91, 93 (CA2 1981); Russell v. Price, 612 F.2d 1123, 1128 (CA9 1979).[16] Even if the alienation of second-term rights would be in the author's best interest, providing funds when he is most in need, the restriction on sale of the corpus is a necessary consequence of Congress' decision to provide two terms of copyright. Neither § 24 nor any other provision of the Act, however, expressly or by implication, prevents the author from exercising any of his other statutory rights during the original term of the copyright. The author of the underlying work may contract to sell his work at a bargain price during the original term of the copyright. That agreement would be enforceable even if performance of the contract diminished the value of the copyright to the owner of the renewal interest. Similarly, the original author may create and copyright his own derivative work; the right of an assignee or legatee to receive that work by assignment or bequest should not be limited by the interests of the owners of the renewal copyright in the underlying work. Section 1 of the Act, 17 U.S. C. § 1 (1976 ed.), gives the author the right to dramatize his own work without any apparent restriction. Such use might appear, at the time or in retrospect, to be improvident and a waste of the asset. Whatever harm the proprietor of the renewal copyright might suffer, however, is a consequence of the enjoyment by the author of the rights granted him by Congress. The result should be no different when the author exercises his right to consent to creation of a derivative work by another. By designating derivative works as "new works" *253 that are subject to copyright and accorded the two terms applicable to original works, Congress evinced its intention that the derivative copyright not lapse upon termination of the original author's interest in the underlying copyright. The continued publication of the derivative work, after the expiration of the original term of the prior work, does not infringe any of the statutory successor's rights in the renewal copyright of the original work. The author's right to sell his derivative rights is exercised when consent is conveyed and completed when the derivative work is copyrighted. At that point, prior to the end of the first term, the right to prevent publication of the derivative work is no longer one of the bundle of rights attaching to the copyright. The further agreement to permit use of the underlying material during the renewal term does not violate § 24 because at the moment consent is given and the derivative work is created and copyrighted, a new right of property comes into existence independent of the original author's copyright estate. As an ex post matter, it might appear that the original author could have negotiated a better contract for his consent to creation of a derivative work, but Congress in § 24 was not concerned with giving an author a second chance to renegotiate his consent to the production of a derivative work.[17] It provided explicitly that, once consent was given, the derivative work was entitled as a matter of copyright law to treatment as a "new wor[k]." § 7. Ironically, by restricting the *254 author's ability to consent to creation of a derivative work with independent existence, the Court may make it practically impossible for the original author to sell his derivative rights late in the original term and to reap the financial and artistic advantage that comes with the creation of a derivative work.[18] Unless § 24 is to overwhelm § 7, the consent of the original author must be given effect whether or not it intrudes into the renewal term of the original copyright. A putative author may sell his work to a motion picture company who will have greater use for it, by becoming an employee and making the work "for hire." The 1909 Act gave the employer the right to renew the copyright in such circumstances.[19] In addition, when an author intends that his work be used as part of a joint work, the copyright law gives the joint author common authority to exploit the underlying work and renew the copyright.[20] The Court today *255 holds, however, that the independent entrepreneur, who does not go into the company's employ and who intends to make independent use of his work, does not also have the same right to sell his consent to produce a derivative work that can be distributed and publicly performed during the full term of its copyright protection. That result is perverse and cannot have been what Congress intended.[21] The critical flaw in the Court's analysis is its implicit endorsement of the Court of Appeals reasoning that: " `If Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must also be unenforceable if the author dies before effecting renewal of the underlying copyright.' " Ante, at 215-216. That reasoning would be valid if the sole basis for the protection of the derivative work were the contractual assignment of copyright, but Woolrich did not just assign the rights to produce a movie version the way an author would assign the publisher rights to copy and vend his work. Rather, he expressed his consent to production of a derivative work under § 7. The possession of a copyright on a properly created derivative work gives the proprietor rights superior to those of *256 a mere licensee. As Judge Friendly concluded, this position is entirely consistent with relevant policy considerations.[22] In my opinion, a fair analysis of the entire 1909 Act, with special attention to § 7, indicates that the statute embodied the same policy choice that continues to be reflected in the 1976 Act. Section 101 of the Act provides: "A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant." 17 U.S. C. App. § 304(c)(6)(A). I respectfully dissent.

The Constitution authorizes the Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const. Art. I, 8, Cl. 8. Section 6 of the Copyright Act of 1909, 17 U.S. C. 7 ( ed.) (hereafter 7), furthers that purpose; 23 of that Act, 17 U.S. C. 24 ( ed.) (hereafter 24), as construed by the Court in this case, does not. It is therefore appropriate to begin with 7.[1] I In a copyright case, as in any other case, the language of the statute provides the starting point. Community for Creative ; Mills Music, Section 7 provides in pertinent part: "Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of *240 works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." This statutory provision deals with derivative works — works that include both old material and new material. The plain language of 7 confers on the entire derivative work — not just the new material contained therein — the status of all other works of authorship, that of "new works subject to copyright under the provisions of this title." Among those rights is that specified in 3 of the 1909 Act, 17 U.S. C. 3 ( ed.), which applies both to composite and derivative works and states that "the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright." In turn, under 1, 17 U.S. C. 1 ( ed.), the author or proprietor of the copyright has the right to distribute and publicly perform the copyrighted derivative work. 1(a), 1(d).[2] The statute does not say *241 anything about the duration of the copyright being limited to the underlying work's original term; rather, derivative works made with the consent of the author and derivative works based on matter in the public domain are treated identically. They are both given independent copyright protection. Section 7, read together with 3, plainly indicates that the copyright on a derivative work extends to both the new material and that "in which copyright is already subsisting." 3. The author or proprietor of the derivative work therefore has the statutory right to publish and distribute the entire work.[3] The structure of 7 confirms this reading. The statute does not merely provide the derivative author with a right to copyright but goes on to set limitations and conditions on that copyright. The statute makes "the consent of the proprietor of the [underlying] copyright" a precondition for copyright of the derivative work, a provision that would make little sense if the copyright provided by 7 did not derogate in some manner from the underlying author's copyright rights.[4] The *242 statute also directs that the right granted the derivative work proprietor should not "be construed to imply an exclusive right to such use of the original works," suggesting, by negative implication, that it should be read to include a non-exclusive right to use of the original works. The provision that publication "shall not affect the force or validity of any subsisting copyright" also suggests that publication would otherwise have the capacity to affect the force or validity of the original copyright: By publishing the derivative work *243 without satisfying the notice requirements of the Act, the derivative author would dedicate to the public not only his own original contribution, but also that of the original author. Conversely, the limitation that publication does not "secure or extend copyright in such original works" would be unnecessary if the copyrighted derivative work did not include within it some of the material covered by the earlier copyright, or if the term of the derivative copyright did not extend beyond the life of the original copyright.[5] Although the derivative copyright protects only the new material contained within the new work, that limitation is not the product of the limited extent of the copyright — which encompasses both new and old material — but rather of the specific statutory language restricting its effect against third parties.[6] *244 Any other interpretation would render the provision largely surplusage. The Copyright Act of 1909 elsewhere accords protection to "all the writings of an author," 4, including dramatic composition, 5, and long before the Act of 1909, it was recognized that the additions and improvements to existing works of art were subject to copyright as original works of authorship.[7] Congress would hardly have needed to provide for the copyright of derivative works, including the detailed provisions on the limit of that copyright, if it intended only to accord protection to the improvements to an original work of authorship. In my opinion, 7 was intended to do something more: to give the original author the power *245 to sell the right to make a derivative work that upon creation and copyright would be completely independent of the original work. II The statutory background supports the conclusion that Congress intended the original author to be able to sell the right to make a derivative work that could be distributed for the full term of the derivative work's copyright protection. At the time of the enactment of 7, copyright in the right to dramatize a nondramatic work was a relatively recent innovation with equivocal support. Until 1870, an author had only the right to prevent the copying or vending of his work in the identical medium.[8] The Act of 1870, which gave the author the "sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending," made a limited start toward further protection, providing that "authors may reserve the right to dramatize or to translate their own works." Ch. 230, 86, The identical language was carried over when the statute was revised in 1873. Rev. Stat. 4952. The Act of 1891 was a landmark. It gave the same rights to the "author" as had the previous statutes, but provided further that "authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States." Ch. 565, 4952, The case law was in accord. Although courts were occasionally willing to enjoin abridgments as infringing, in 1853 Justice Grier wrote that a dramatization of the novel "Uncle Tom's Cabin" would not infringe *246 the author's rights in the book, see (No. 13,514) (CC ED Pa. 1853),[9] and it was not until after the passage of the 1909 Act that this Court first held that a copy of a literary work in another form than the original could infringe the author's copyright. See Kalem[10] *247 The drafts of the copyright bill, considered by the Conferences held by the Register of Copyrights and the Librarian of Congress in 1905 and 1906,[11] had three distinctive features with respect to derivative works: They provided a limited period of protection from the creation of derivative works during which a derivative work could only be created with "the consent of the author or his assigns," 2 Brylawski & Goldman, Part D, p. LXV;[12] they distinguished between the copyright term for original works of authorship and for derivative works, according the latter a shorter period of protection;[13] and, finally, they provided that derivative works produced with the consent of the original author would be considered new works entitled to copyright. Together these provisions reveal a more complicated set of theoretical premises than is commonly acknowledged. Although originality of authorship was an essential precondition of copyright, *248 the duration of the copyright term and the extent of copyright protection rested upon the nature of the work as a whole rather than the original expression contributed by the copyright author. Moreover, the consent of the underlying author to the production of a derivative work was to be encouraged and, once given, entitled the derivative work to independence from the work upon which it was based. The first two provisions were not included in the Copyright Act, which gave authors the right, during the full term of copyright, to create or consent to the creation of derivative works which would then enjoy their own copyright protection. But the third provision which set the conditions upon which an original author would consent and the second author would create a derivative work entitled to protection under the Copyright Act carried forward the view that the derivative copyright extended beyond the original contribution of the derivative author. Throughout the debates on the provision, the drafters of the Copyright Act evinced their understanding that the derivative copyright itself encompassed the whole derivative work. The first draft of 7, considered by the second Conference in 1905, would have provided copyright as a new work for a derivative work "produced with the consent and authorization of the author of the original," without any restrictions on the effect of that copyright on the copyright in the original work. 2 Brylawski & Goldman. Part D, p. XXXII. By the time of the third Conference in 1906, the Register of Copyrights expressed his concern that that provision would be read too broadly, adding the proviso: "That the copyright thus secured shall not be construed to grant any exclusive right to such use of the original works, except as that may be obtained by agreement with the author or proprietor thereof." 3 Part E, p. LI. The implication was that, in the absence of an agreement, the author of the derivative work would have, as a matter of copyright law, a nonexclusive right "to such use of the original works." *249 The final draft presented to Congress at the end of 1906 addressed a parallel problem that the license to use the underlying material might also detract from the rights of the underlying copyright if the derivative author did not adequately protect the material on which the copyright was subsisting. To allay this concern, the Register added the language "no such copyright shall affect the force or validity of any subsisting copyright upon the matter employed or any part thereof." 1 Part B, p. 15. Two significant changes were made during the congressional hearings from 1907 through 1909, but with those exceptions the provision survived intact. First, in response to the objection that the language of 6, codified at 17 U.S. C. 7 ( ed.), in conjunction with that of 3, codified at 17 U.S. C. 3 ( ed.), would be read to give the derivative work proprietor "a new term of copyright running on this old matter of his" and, in that way, provide for perpetual copyright, 4 Brylawski & Goldman, Part J, pp. 132-138 (statement of Mr. Porterfeld); see also Congress limited the enforceability of the derivative copyright, adding language that publication of the dramatization would not "secure or extend copyright in such original works." 6, Second, in response to the objection that the Register's draft provision did not address with sufficient precision the possibility that failure of the derivative copyright would allow the underlying work to enter the public domain, Congress substituted the work "publication" for "copyright" in the "force or validity" clause. Congress thus made clear that it was the publication of the derivative work, not the copyright itself, that was not to "affect the force or validity of any subsisting copyright." Ibid.[14] * The legislative history confirms that the copyright in derivative works not only gives the second creative product the monopoly privileges of excluding others from the unconsented use of the new work, but also allows the creator to publish his or her own work product. The authority to produce the derivative work, which includes creative contributions by both the original author and the second artist, is dependent upon the consent of the proprietor of the underlying copyright. But once that consent has been obtained, and a derivative work has been created and copyrighted in accord with that consent, "a right of property spr[ings] into existence," that Congress intended to protect. Publication of the derivative work does not "affect the force or validity" of the underlying copyright except to the extent that it gives effect to the consent of the original proprietor. That owner — and in this case, the owner of a renewal of the original copyright — retains full dominion and control over all other means of exploiting that work of art, including the right to authorize other derivative works. The original copyright may have relatively little value because the creative contribution of the second artist is far more significant than the original contribution, *251 but that just means that the rewards for creativity are being fairly allocated between the two artists whose combined efforts produced the derivative work. III Nothing in 24 requires a different result. The portion of that section dealing with copyright renewals provides: "[T]he author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright." 17 U.S. C. 24 ( ed.). That statute limits the renewal rights in a copyright to the specified statutory beneficiaries, "completely dissevering the title, breaking up the continuance and vesting an absolutely new title eo nomine in the persons designated." White-Smith Music Publishing Since copyright is a creature of statute and since the statute gives the author only a contingent estate, with "the widow, widower, or children" as remaindermen, the author "ha[s] only an expectancy to assign" for the second term. Miller Music The original author may not sell more than he owns. He may not convey the second-term rights to print or copy the underlying work or to create additional derivative works from it. See ; G. Ricordi & (CA2), cert, denied,[15] Nor may the derivative author dedicate *252 the underlying art to the public by failing to renew his copyright. See Filmvideo Releasing ;[16] Even if the alienation of second-term rights would be in the author's best interest, providing funds when he is most in need, the restriction on sale of the corpus is a necessary consequence of Congress' decision to provide two terms of copyright. Neither 24 nor any other provision of the Act, however, expressly or by implication, prevents the author from exercising any of his other statutory rights during the original term of the copyright. The author of the underlying work may contract to sell his work at a bargain price during the original term of the copyright. That agreement would be enforceable even if performance of the contract diminished the value of the copyright to the owner of the renewal interest. Similarly, the original author may create and copyright his own derivative work; the right of an assignee or legatee to receive that work by assignment or bequest should not be limited by the interests of the owners of the renewal copyright in the underlying work. Section 1 of the Act, 17 U.S. C. 1 ( ed.), gives the author the right to dramatize his own work without any apparent restriction. Such use might appear, at the time or in retrospect, to be improvident and a waste of the asset. Whatever harm the proprietor of the renewal copyright might suffer, however, is a consequence of the enjoyment by the author of the rights granted him by Congress. The result should be no different when the author exercises his right to consent to creation of a derivative work by another. By designating derivative works as "new works" *253 that are subject to copyright and accorded the two terms applicable to original works, Congress evinced its intention that the derivative copyright not lapse upon termination of the original author's interest in the underlying copyright. The continued publication of the derivative work, after the expiration of the original term of the prior work, does not infringe any of the statutory successor's rights in the renewal copyright of the original work. The author's right to sell his derivative rights is exercised when consent is conveyed and completed when the derivative work is copyrighted. At that point, prior to the end of the first term, the right to prevent publication of the derivative work is no longer one of the bundle of rights attaching to the copyright. The further agreement to permit use of the underlying material during the renewal term does not violate 24 because at the moment consent is given and the derivative work is created and copyrighted, a new right of property comes into existence independent of the original author's copyright estate. As an ex post matter, it might appear that the original author could have negotiated a better contract for his consent to creation of a derivative work, but Congress in 24 was not concerned with giving an author a second chance to renegotiate his consent to the production of a derivative work.[17] It provided explicitly that, once consent was given, the derivative work was entitled as a matter of copyright law to treatment as a "new wor[k]." 7. Ironically, by restricting the *254 author's ability to consent to creation of a derivative work with independent existence, the Court may make it practically impossible for the original author to sell his derivative rights late in the original term and to reap the financial and artistic advantage that comes with the creation of a derivative work.[18] Unless 24 is to overwhelm 7, the consent of the original author must be given effect whether or not it intrudes into the renewal term of the original copyright. A putative author may sell his work to a motion picture company who will have greater use for it, by becoming an employee and making the work "for hire." The 1909 Act gave the employer the right to renew the copyright in such circumstances.[19] In addition, when an author intends that his work be used as part of a joint work, the copyright law gives the joint author common authority to exploit the underlying work and renew the copyright.[20] The Court today *255 holds, however, that the independent entrepreneur, who does not go into the company's employ and who intends to make independent use of his work, does not also have the same right to sell his consent to produce a derivative work that can be distributed and publicly performed during the full term of its copyright protection. That result is perverse and cannot have been what Congress intended.[] The critical flaw in the Court's analysis is its implicit endorsement of the Court of Appeals reasoning that: " `If Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must also be unenforceable if the author dies before effecting renewal of the underlying copyright.' " Ante, at 5-6. That reasoning would be valid if the sole basis for the protection of the derivative work were the contractual assignment of copyright, but Woolrich did not just assign the rights to produce a movie version the way an author would assign the publisher rights to copy and vend his work. Rather, he expressed his consent to production of a derivative work under 7. The possession of a copyright on a properly created derivative work gives the proprietor rights superior to those of *256 a mere licensee. As Judge Friendly concluded, this position is entirely consistent with relevant policy considerations.[22] In my opinion, a fair analysis of the entire 1909 Act, with special attention to 7, indicates that the statute embodied the same policy choice that continues to be reflected in the Act. Section 101 of the Act provides: "A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant." 17 U.S. C. App. 304(c)(6)(A). I respectfully dissent.

Justice Brennan

dissenting

Maggio v. Williams

https://www.courtlistener.com/opinion/111046/maggio-v-williams/

https://www.courtlistener.com/api/rest/v3/clusters/111046/

1983-006

Before the Court is an application, filed by Ross Maggio, Warden of the Louisiana State Penitentiary, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit.[1] Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court's approach to this case displays an unseemly and unjustified eagerness to allow the State to proceed with Williams' execution, I dissent. I Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), I would deny the Warden's application to vacate the stay of execution granted by the Court of Appeals. II Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny the application in this case because *57 Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence. This afternoon, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of statewide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the State. Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of statewide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court's plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him. His common-sense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See 460 U.S. 1036 (1983). It is also why JUSTICE WHITE, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, post, p. 1301 (in chambers). See also infra, at 62. Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence. First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a *58 districtwide or parishwide proportionality review in his case. See State v. Williams, 383 So. 2d 369, 374-375 (1980), cert. denied, 449 U.S. 1103 (1981). He properly notes that prior opinions of this Court have suggested that statewide proportionality review is required before any constitutional death sentence may be carried out. See, e. g., Gregg v. Georgia, 428 U. S., at 198, 204-206 (opinion of Stewart, POWELL, and STEVENS, JJ.) (approving death penalty in Georgia where appellate court examines whether the same sentence has been imposed " `in similar cases throughout the state' "); id., at 223 (opinion of WHITE, J.) (noting with approval that the State Supreme Court vacates the death sentence "whenever juries across the State impose it only rarely for the type of crime in question").[2] Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.[3] *59 Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are statewide in scope. See, e. g., State v. Moore, 432 So. 2d 209, 225-228 (1983) (limited comparison of first-degree murder cases statewide); State v. Narcisse, 426 So. 2d 118, 138-139 (1983) (similar comparison between several districts rather than the customary one). The state court's failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place. A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy.[4]*60 The review was undertaken in April 1980, when Williams' case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams' crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, La., the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder. And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the eight defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams' case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the State of Louisiana also had received a death sentence. Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice *61 that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial district in which the defendant was tried. This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. "A constant theme of our cases . . . has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner." Barclay v. Florida, 463 U.S. 939, 960 (1983) (STEVENS, J., concurring in judgment). Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e. g., Zant v. Stephens, 462 U. S., at 875 and 876; Gregg v. Georgia, 428 U. S., at 195, 204-206. Given the existence of only one statewide death penalty statute approved by the Louisiana State Legislature, requiring that all courts and juries across the State apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the State Supreme Court may apply different standards of appellate review depending on the judicial district involved. In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley. III The Court offers no defensible rationale for departing from this sensible practice.[5] Its action in this case is especially *62 troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively pre-empts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams' execution. Less than five weeks ago, on October 5, 1983, JUSTICE WHITE stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, post, p. 1301 (in chambers). JUSTICE WHITE concluded that Autry's execution should be stayed pending disposition of Pulley because the Court's decision in Pulley will likely have a bearing on the validity of that prisoner's last-minute claim. Since then, the full Court has refused to vacate that stay. Post, p. 925. Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference. Given the questions presented in Pulley, see supra, at 57, it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify. It is no answer that the Court has consistently denied challenges to Louisiana's districtwide proportionality review, including Williams' own challenge to that review in his petition for certiorari on his first federal habeas. Williams v. Maggio, 463 U.S. 1214 (1983). For each of these denials, as is true of all denials of certiorari, is not a decision on the merits of the issues raised in the respective petitions. More *63 important, in none of those cases did the Court's denial of certiorari involve an imminent date of execution. In this case, by contrast, the Court's action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.[6] Nor may the Court take comfort in the fact that, in the course of denying Williams' request for habeas relief, the Federal District Court conducted an abbreviated statewide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams' sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams. The District Court's judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the State Supreme Court, which is presumably more familiar than the federal court with the important nuances of the State's death penalty jurisprudence. Moreover, because Williams' requested remedy on habeas was a remand to the state court for a statewide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that statewide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the State Supreme Court should not be deemed constitutionally sufficient. Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, districtwide review conducted in Williams' case. In fact, Williams' habeas petition *64 has identified at least two specific ways in which he has been prejudiced by a districtwide, rather than a statewide, proportionality review. First, he claims that there has never been a statewide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the State which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover. The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court's plenary docket. Rather, "an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute . . . before the ordinary appellate procedure has run its course." Barefoot v. Estelle, 463 U.S. 880, 913 (1983) (MARSHALL, J., dissenting) (emphasis in original).[7] *65 IV By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue. I dissent.

Before the Court is an application, filed by Ross Maggio, Warden of the Louisiana State Penitentiary, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit.[1] Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court's approach to this case displays an unseemly and unjustified eagerness to allow the State to proceed with Williams' execution, I dissent. I Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, I would deny the Warden's application to vacate the stay of execution granted by the Court of Appeals. II Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny the application in this case because *57 Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence. This afternoon, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of statewide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the State. Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of statewide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court's plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him. His common-sense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See It is also why JUSTICE WHITE, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, post, p. 1301 (in chambers). See also infra, at 62. Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence. First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a *58 districtwide or parishwide proportionality review in his case. See cert. denied, He properly notes that prior opinions of this Court have suggested that statewide proportionality review is required before any constitutional death sentence may be carried out. See, e. g., 204-206 (approving death penalty in where appellate court examines whether the same sentence has been imposed " `in similar cases throughout the state' "); (noting with approval that the State Supreme Court vacates the death sentence "whenever juries across the State impose it only rarely for the type of crime in question").[2] Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.[3] *59 Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are statewide in scope. See, e. g., ; The state court's failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place. A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy.[4]*60 The review was undertaken in April when Williams' case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams' crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, La., the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder. And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the eight defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams' case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the State of Louisiana also had received a death sentence. Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice *61 that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial district in which the defendant was tried. This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. "A constant theme of our cases has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner." Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e. g., Zant v. and 876; 204-206. Given the existence of only one statewide death penalty statute approved by the Louisiana State Legislature, requiring that all courts and juries across the State apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the State Supreme Court may apply different standards of appellate review depending on the judicial district involved. In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley. III The Court offers no defensible rationale for departing from this sensible practice.[5] Its action in this case is especially *62 troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively pre-empts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams' execution. Less than five weeks ago, on October 5, JUSTICE WHITE stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, post, p. 1301 (in chambers). JUSTICE WHITE concluded that Autry's execution should be stayed pending disposition of Pulley because the Court's decision in Pulley will likely have a bearing on the validity of that prisoner's last-minute claim. Since then, the full Court has refused to vacate that stay. Post, p. 925. Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference. Given the questions presented in Pulley, see it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify. It is no answer that the Court has consistently denied challenges to Louisiana's districtwide proportionality review, including Williams' own challenge to that review in his petition for certiorari on his first federal habeas. For each of these denials, as is true of all denials of certiorari, is not a decision on the merits of the issues raised in the respective petitions. More *63 important, in none of those cases did the Court's denial of certiorari involve an imminent date of execution. In this case, by contrast, the Court's action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.[6] Nor may the Court take comfort in the fact that, in the course of denying Williams' request for habeas relief, the Federal District Court conducted an abbreviated statewide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams' sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams. The District Court's judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the State Supreme Court, which is presumably more familiar than the federal court with the important nuances of the State's death penalty jurisprudence. Moreover, because Williams' requested remedy on habeas was a remand to the state court for a statewide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that statewide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the State Supreme Court should not be deemed constitutionally sufficient. Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, districtwide review conducted in Williams' case. In fact, Williams' habeas petition *64 has identified at least two specific ways in which he has been prejudiced by a districtwide, rather than a statewide, proportionality review. First, he claims that there has never been a statewide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the State which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover. The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court's plenary docket. Rather, "an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute before the ordinary appellate procedure has run its course." (emphasis in original).[7] *65 IV By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue. I dissent.

Justice Thomas

dissenting

Alabama Dept. of Revenue v. CSX Transp., Inc.

https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2783887/

2014-019

In order to violate 49 U.S. C. §11501(b)(4), “a tax ex­ emption scheme must target or single out railroads by comparison to general commercial and industrial taxpay­ ers.” CSX Transp., Inc. v. Alabama Dept. of Revenue (CSX I ), 562 U.S. 277, 297–298 (2011) (THOMAS, J., dissenting). Because CSX cannot prove facts that would satisfy that standard, I would reverse the judgment below and remand for the entry of judgment in favor of the Alabama Depart­ ment of Revenue. I A Last time this case was before the Court, I explained in detail my reasons for interpreting “another tax that dis­ criminates against a rail carrier” in §11501(b)(4) to refer to a tax “that targets or singles out railroads as compared to other commercial and industrial taxpayers.” Id., at 298. I briefly summarize that reasoning here. Because the meaning of “discriminates” is ambiguous at first glance, I look to the term’s context to resolve this uncertainty. Id., at 298–299. Both the structure and background of the statute indicate that subsection (b)(4) prohibits only taxes that single out railroads as compared 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting to other commercial and industrial taxpayers. Subsection (b)(4) is a residual clause, the meaning of which is best understood by reference to the provisions that precede it. Subsection (b) begins by announcing that “[t]he following acts . . . discriminate against interstate commerce” and are prohibited. §11501(b). Subsections (b)(1) through (3) then list three tax-related actions that single out rail carriers by treating rail property differently from all other commercial and industrial property. §§11501(b)(1)–(3); id., at 300. Subsections (b)(1) and (b)(3) explicitly identify “commercial and industrial property” as the comparison class, and subsection (b)(2) incorporates that comparison class by reference. §11501(b); id., at 300. Subsection (b)(4) refers back to these provisions when it forbids “[i]mpos[ing] another tax that discriminates against a rail carrier.” §11501(b)(4) (emphasis added); id., at 300). The statutory structure therefore supports the conclusion that a tax “discriminates against a rail carrier” within the meaning of subsection (b)(4) if it singles out railroads for unfavorable treatment as compared to the general class of commercial and industrial taxpayers. Id., at 300–301. The statutory background supports the same conclusion. When Congress enacted the 4–R Act, it was apparent that railroads were “easy prey for State and local tax assessors in that they are nonvoting, often nonresident, targets for local taxation, who cannot easily remove themselves from the locality.” Id., at 301 (internal quotation marks omit­ ted). Subsections (b)(1) through (3) thus “establish a political check” by preventing States from imposing exces­ sive property taxes on railroads “without imposing the same taxes more generally on voting, resident local busi­ nesses.” Ibid. Subsection (b)(4) is best understood as addressing the same problem in the same way. Id., at 301–302. Cite as: 575 U. S. ____ (2015) 3 THOMAS, J., dissenting B Alabama’s tax scheme cannot be said to “discriminat[e] against a rail carrier.” Id., at 302. To begin, the scheme does not single out rail carriers. Although one would not know it from the majority opinion, the tax is not directed at rail carriers, their property, their activity, or goods uniquely consumed by them. It is instead a generally applicable sales tax. It applies (with other exemptions not at issue here) to all goods purchased, used, or stored in the State of Alabama. Ala. Code §§40–23–2(1), 40–23–61(a) (2011). The only relevant good exempted from the tax is diesel on which the motor fuel tax has been paid, §40–17– 325(b), and no provision of law prevents rail carriers from buying such diesel. See Brief for Respondent 46, n. 13 (acknowledging that CSX pays the motor fuel tax on the diesel fuel it uses in trucks and other on-road vehic- les). Water carriers, it is true, enjoy a special carve-out from this sales tax, §40–23–4(a)(10) (Cum. Supp. 2014), but that exemption singles out water carriers, not rail carriers. Even if this constellation of exemptions to Alabama’s sales tax could be said to single out rail carriers from the general class of their interstate competitors, the tax surely does not single out rail carriers as compared to commercial and industrial taxpayers. Those taxpayers are subject to exactly the same generally applicable sales and use tax regime as are rail carriers. II A The Court started off on the wrong track in CSX I when it relied on a generic dictionary definition of “discrimi­ nates” in the face of a statutory context suggesting a more specific definition. See 562 U.S., at 304. Today’s decision continues that error. The Court uncritically accepts the conclusion that the 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting “discriminat[ion]” addressed by the statute encompasses any distinction between rail carriers and their comparison class, ante, at 4, as opposed to mere “singling out” or some­ thing in between, even though the word “discriminates” is ambiguous in that way. CSX I, supra, at 299. The Court’s usual practice has not been to treat the meaning of “discriminates” so casually. See generally Guardians Assn. v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 590–593 (1983) (opinion of White, J.) (discussing the Court’s shifting definition of the ambiguous term “discrimination”). Today’s decision compounds this error by holding that a rail carrier may make out a claim of discrimination using any comparison class so long as that class consists of “individuals similarly situated to the claimant” rail carrier. Ante, at 5. The majority purports to derive this limita- tion from the dictionary, but then finds itself unable to proceed: After all, Black’s Law Dictionary contains no entry defining what it means to be “similarly situated” for the purpose of subsection (b)(4). Forced finally to turn to the statutory context, the majority rejects the statutorily defined competitor class of commercial and industrial taxpayers in favor of a shifting comparison class of its own creation. B The majority disregards the commercial and industrial property comparison class identified in subsections (b)(1) through (3) because subsection (b)(4) does not explicitly include language from those provisions. See ante, at 4–5, 6–7. It asserts that defining the comparison class for the purpose of subsection (b)(4) by reference to the comparison class identified in subsections (b)(1) through (b)(3) “would require us to dragoon the modifier ‘commercial and indus­ trial’—but not the noun ‘property’—from the first three provisions, append ‘general’ in front of it and ‘taxpayers’ Cite as: 575 U. S. ____ (2015) 5 THOMAS, J., dissenting after, both words foreign to the preceding subsections.” Ante, at 7. The majority’s accusation of grammatical conscription misses the point. Subsection (b)(4) is a residual clause, explicitly marked as such by the use of the word “another.” See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003). Like other residual clauses, it need not use the same language as the clauses it follows to derive meaning from those clauses. See, e.g., Sossamon v. Texas, 563 U.S. 277, ___ (2011) (slip op., at 13); James v. United States, 550 U.S. 192, 217–218 (2007) (SCALIA, J., dissenting). Where, as here, a residual clause includes an ambiguous word like “discriminates,” we must look to the clauses that precede it to guide our understanding of its scope. In some sense, my task in giving meaning to the statu­ tory term “discriminates” is no different from the major­ ity’s: to determine what type of differential treatment the statute forbids. The first three clauses provide important clues that the statute forbids singling out rail carriers from other commercial and industrial taxpayers because commercial and industrial taxpayers are the ones who pay taxes on “commercial and industrial property.” The major­ ity pursues the same logical train of thought when it opines that “the category of ‘similarly situated’ (b)(4) comparison classes must include commercial and indus- trial taxpayers” because “[t]here is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads.” Ante, at 6. Where we part ways is in the inferences we draw from the statutory context. Treating subsection (b)(4) as a residual clause does not require the grammatical distortions that the majority alleges. The word “discriminates” in subsection (b)(4) is not a referential phrase whose antecedent is uncertain. If 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting it were, then it would be necessary to select an antecedent that would fit grammatically in place of “discriminates.” Instead, I look to (b)(1) to (3) merely to clarify an ambigu- ity in the meaning of “discriminates,” a task that does not require me to “dragoon” the language of the prior clauses into subsection (b)(4). Nor does my approach rely on the first three clauses of §11501(b) to supply a general limitation on the independ­ ent prohibition that appears in subsection (b)(4). See United States v. Aguilar, 515 U.S. 593, 615 (1995) (SCALIA, J., concurring in part and dissenting in part) (criticizing this type of argument). That is what Alabama sought to do in CSX I when it argued that subsection (b)(4) is limited to property taxes (or their equivalent “in lieu” taxes). Ante, at 7; CSX I, 562 U.S., at 285 (majority opin­ ion). I joined the majority in rejecting that argument. Id., at 297 (dissenting opinion). But whereas there is no un­ certainty about the meaning of “taxes” in subsection (b)(4) that would justify importing the property tax limitation from the three preceding subsections, id., at 284–285 (majority opinion), there is a good deal of uncertainty about the meaning of “discriminates.” This uncertainty justifies looking to the three previous clauses to under­ stand the type of differential treatment §11501(b) is meant to prohibit. Id., at 298–299 (dissenting opinion); see Harrison v. PPG Industries, Inc., 446 U.S. 578, 588– 589 (1980). And those three previous clauses easily supply the answer to the comparison class question. C Unwilling to so limit the range of available comparison classes, the majority takes an approach to determining which individuals are “similarly situated” for purposes of the statute that “is almost entirely ad hoc,” James, supra, at 215 (SCALIA, J., dissenting). It asserts that the compar­ ison class will “depen[d] on the theory of discrimination Cite as: 575 U. S. ____ (2015) 7 THOMAS, J., dissenting alleged in the claim.” Ante, at 4–5. Sometimes the com­ parison class will be “all other commercial and industrial taxpayers,” sometimes it will be “the railroad’s competi­ tors” in a particular jurisdiction, and sometimes it may be some other comparison class entirely. Id., at 5. The sole evidence on which the majority relies to con­ clude that competitors are similarly situated, and there­ fore qualify as a comparison class, is the professed pur­ poses of the Act: “to ‘restore the financial stability of the railway system of the United States,’ while ‘foster[ing] competition among all carriers by railroad and other modes of transportation.’ ” Ante, at 6 (quoting 90 Stat. 33, §§101(a), (b)(2)). Interpreting statutory text solely in light of purpose, absent any reliance on text or structure, is dangerous business because it places courts in peril of substituting their policy judgment for that of Congress. In considering statutory purpose, therefore, we should be careful that any inferences of purpose are tied to text rather than instinct. The majority throws such caution to the wind. Its two- sentence argument is a perfect illustration of the dangers of a purely purpose-based approach. The majority cherry- picks two of a number of stated goals of a complex piece of legislation over 100 pages long and assumes that this specific provision was assigned to those specific purposes. And then it interprets the statute to perform in the man­ ner the majority believes is best designed to “restore . . . financial stability” and “foster . . . competition.” Ante, at 6 (alteration omitted). I have no reason to doubt the economic soundness of the majority’s conclusion that discrimination between rail carriers and their competitors threatens their financial stability and impedes competition, but I lack the major- ity’s certitude that §11501(b)(4) is designed to further those goals by combatting that evil, at least in the way the ma­ jority asserts. Instead, the first three subsections provide 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting strong textual evidence that §11501(b) was designed to stabilize rail carriers by protecting them from discrimina­ tion against interstate commerce. And they provide evi­ dence of Congress’ chosen mechanism for accomplishing that goal: tying the fate of interstate rail carriers to the broader class of commercial and industrial taxpayers. See supra, at 2. The introductory clause of §11501(b) provides further evidence that the evil at which subsection (b)(4) is tar- geted is not discrimination between rail carriers and their competitors, but “acts [that] unreasonably burden and discriminate against interstate commerce.” The majority’s response to this evidence—that the Court rejected a simi­ lar argument when it refused to limit subsection (b)(4) to property taxes or their kin, ante, at 7—is a non sequitur. The introductory clause contains no reference to property taxes that “binds its four subsections together” as prohibi­ tions on discriminatory property taxes. Ibid. (internal quotation marks omitted). But it does have a reference to discrimination against interstate commerce, which does tie the sections together to serve that common statutory purpose. This, in turn, weighs against the majority’s inferences about how §11501(b) relates to the stated pur­ poses of the 4–R Act. The majority’s conclusion that competitors are a permis­ sible comparison class completely ignores these contextual clues, permitting subsection (b)(4) to serve different statu­ tory goals by a different mechanism than its three prede­ cessor clauses. And it leads to odd inconsistencies. If we were to understand the provision as prohibiting only discrimination between rail carriers and their competitors, then it might well further the goal of promoting competi­ tion between interstate carriers. But the majority instead selects a shifting-comparison-class approach, requiring rail carriers to be treated at least as well as their competi­ tors and any other similarly situated taxpayers. See ante, Cite as: 575 U. S. ____ (2015) 9 THOMAS, J., dissenting at 4–5. This most-favored taxpayer status is a position the competitors do not enjoy, so the majority’s position could result in tax schemes that impede competition between interstate carriers rather than promote it. Identifying “similarly situated” taxpayers by the undis­ ciplined approach the majority endorses could well lead to other unanticipated consequences. This is why the policy judgments needed to link statutory mechanisms to statu­ tory purposes are best left to Congress. If this Court is going to adopt a shifting-comparison-class approach to §11501(b)(4), then it should at least demand a stronger textual link between the comparison class a claimant seeks to import into subsection (b)(4) and any purpose that the claimant argues it serves. III Because the majority adopts an interpretation of §11501(b)(4) that is not grounded in the text, it should come as no surprise that this interpretation is difficult to apply, as this case demonstrates. It is easy to see how, accepting water carriers as a comparison class, the scheme treats water carriers and rail carriers differently when it grants water carriers, but not rail carriers, an exemption from the sales tax. Ala. Code §40–23–4(a)(10). Identifying the difference in treatment between rail and motor car- riers, by contrast, requires a good deal more imagination. The majority’s approach exhibits that imagination. It glosses over the general applicability of the provisions that apply to rail and motor carriers, stating that “[t]he State applies the [sales or use] tax, at the usual 4% rate, to railroads’ purchase or use of diesel fuel for their rail oper­ ations,” but “exempts from the tax purchases and uses of diesel fuel made by [motor carriers].” Ante, at 1. A quick glimpse at the code reveals that this is not quite the case. The applicability of the sales and use taxes does not de­ pend on the identity of the purchaser, but on whether the 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting purchaser pays another excise tax, §40–17–325(b), which in turn depends on the nature of the product purchased and its use, §§40–17–328, 40–17–329, which in turn merely correlates to the carriers’ operations. As far as I can tell, the rail carriers use dyed diesel that is exempt from the motor fuel tax—and therefore subject to the sales and use taxes—as a matter of choice rather than necessity. Dyed diesel has no special properties that make it more suitable for use in a train engine; the dye merely identifies it as exempt from the federal excise tax, §40–17–322(21). And no law prohibits rail carriers from using undyed diesel. To the contrary, it is the motor carriers who are prohibited from using the dyed variant for on-road use. Assuming arguendo that state law provides that only dyed diesel may be used in rail operations, it becomes a little easier to make an argument that the State treats rail carriers differently in this case. But the majority still faces a line-drawing problem. Is it necessary that the good subject to the challenged tax be the same as the good on which the competitor enjoys an exemption? Could a rail carrier that relies on natural gas rather than diesel for motive power make the same claim of discrimination if natural gas is not entitled to the same sales-tax exemption as diesel? Is it necessary that the rail carrier and its competitor rely on the good for the same purpose? Could a rail carrier that uses diesel for motive power challenge a hypothetical provision that exempted from the sales and use taxes diesel that motor carriers use for refrigeration in refrigerated trailers? The majority never answers these questions. “Sufficient unto the day is the evil thereof,” it intones. Ante, at 6. “That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: pro­ vide guidance concrete enough to ensure that the” statute is applied consistently. James, 550 U.S., at 215 (SCALIA, Cite as: 575 U. S. ____ (2015) 11 THOMAS, J., dissenting J., dissenting). We have demanded clarity from Congress when it comes to statutes that “se[t] limits upon the taxa­ tion authority of state government, an authority we have recognized as central to state sovereignty.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 344–345 (1994). We should demand the same of ourselves when we interpret those statutes. Yet after today’s deci­ sion, lower courts, soon to be met with an oyster’s shellful of comparison classes, ante, at 5, will have no idea how to determine when a tax exemption that is not tied to the taxpayer’s status constitutes differential treatment of two taxpayers. * * * The majority’s interpretation of §11501(b)(1) derails ambiguous text from clarifying context. The result it reaches is predictably unworkable. And it prolongs Ala­ bama’s burden of litigating a baseless claim of discrimina­ tion that should have been dismissed long ago. I respect­ fully dissent

n order to violate 49 U.S. C. “a tax ex­ emption scheme must target or single out railroads by comparison to general commercial and industrial taxpay­ ers.” CSX Transp., Because CSX cannot prove facts that would satisfy that standard, would reverse the judgment below and remand for the entry of judgment in favor of the Alabama Depart­ ment of Revenue. A Last time this case was before the Court, explained in detail my reasons for interpreting “another tax that dis­ criminates against a rail carrier” in to refer to a tax “that targets or singles out railroads as compared to other commercial and industrial taxpayers.” briefly summarize that reasoning here. Because the meaning of “discriminates” is ambiguous at first glance, look to the term’s context to resolve this uncertainty. –299. Both the structure and background of the statute indicate that subsection (b)(4) prohibits only taxes that single out railroads as compared 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting to other commercial and industrial taxpayers. Subsection (b)(4) is a residual clause, the meaning of which is best understood by reference to the provisions that precede it. Subsection (b) begins by announcing that “[t]he following acts discriminate against interstate commerce” and are prohibited. Subsections (b)(1) through (3) then list three tax-related actions that single out rail carriers by treating rail property differently from all other commercial and industrial property. Subsections (b)(1) and (b)(3) explicitly identify “commercial and industrial property” as the comparison class, and subsection (b)(2) incorporates that comparison class by reference. Subsection (b)(4) refers back to these provisions when it forbids “[i]mpos[ing] another tax that discriminates against a rail carrier.” (emphasis added); ). The statutory structure therefore supports the conclusion that a tax “discriminates against a rail carrier” within the meaning of subsection (b)(4) if it singles out railroads for unfavorable treatment as compared to the general class of commercial and industrial taxpayers. –301. The statutory background supports the same conclusion. When Congress enacted the 4–R Act, it was apparent that railroads were “easy prey for State and local tax assessors in that they are nonvoting, often nonresident, targets for local taxation, who cannot easily remove themselves from the locality.” (internal quotation marks omit­ ted). Subsections (b)(1) through (3) thus “establish a political check” by preventing States from imposing exces­ sive property taxes on railroads “without imposing the same taxes more generally on voting, resident local busi­ nesses.” Subsection (b)(4) is best understood as addressing the same problem in the same way. at 301–302. Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting B Alabama’s tax scheme cannot be said to “discriminat[e] against a rail carrier.” To begin, the scheme does not single out rail carriers. Although one would not know it from the majority opinion, the tax is not directed at rail carriers, their property, their activity, or goods uniquely consumed by them. t is instead a generally applicable sales tax. t applies (with other exemptions not at issue here) to all goods purchased, used, or stored in the State of Alabama. –23–2(1), 40–23–61(a) The only relevant good exempted from the tax is diesel on which the motor fuel tax has been paid, 325(b), and no provision of law prevents rail carriers from buying such diesel. See Brief for Respondent 46, n. 13 (acknowledging that CSX pays the motor fuel tax on the diesel fuel it uses in trucks and other on-road vehic- les). Water carriers, it is true, enjoy a special carve-out from this sales tax, (Cum. Supp. 2014), but that exemption singles out water carriers, not rail carriers. Even if this constellation of exemptions to Alabama’s sales tax could be said to single out rail carriers from the general class of their interstate competitors, the tax surely does not single out rail carriers as compared to commercial and industrial taxpayers. Those taxpayers are subject to exactly the same generally applicable sales and use tax regime as are rail carriers. A The Court started off on the wrong track in CSX when it relied on a generic dictionary definition of “discrimi­ nates” in the face of a statutory context suggesting a more specific definition. See Today’s decision continues that error. The Court uncritically accepts the conclusion that the 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting “discriminat[ion]” addressed by the statute encompasses any distinction between rail carriers and their comparison class, ante, at 4, as opposed to mere “singling out” or some­ thing in between, even though the word “discriminates” is ambiguous in that way. CSX The Court’s usual practice has not been to treat the meaning of “discriminates” so casually. See generally Guardians Assn. v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 590–593 (1983) (opinion of White, J.) (discussing the Court’s shifting definition of the ambiguous term “discrimination”). Today’s decision compounds this error by holding that a rail carrier may make out a claim of discrimination using any comparison class so long as that class consists of “individuals similarly situated to the claimant” rail carrier. Ante, The majority purports to derive this limita- tion from the dictionary, but then finds itself unable to proceed: After all, Black’s Law Dictionary contains no entry defining what it means to be “similarly situated” for the purpose of subsection (b)(4). Forced finally to turn to the statutory context, the majority rejects the statutorily defined competitor class of commercial and industrial taxpayers in favor of a shifting comparison class of its own creation. B The majority disregards the commercial and industrial property comparison class identified in subsections (b)(1) through (3) because subsection (b)(4) does not explicitly include language from those provisions. See ante, at 4–5, 6–7. t asserts that defining the comparison class for the purpose of subsection (b)(4) by reference to the comparison class identified in subsections (b)(1) through (b)(3) “would require us to dragoon the modifier ‘commercial and indus­ trial’—but not the noun ‘property’—from the first three provisions, append ‘general’ in front of it and ‘taxpayers’ Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting after, both words foreign to the preceding subsections.” Ante, at 7. The majority’s accusation of grammatical conscription misses the point. Subsection (b)(4) is a residual clause, explicitly marked as such by the use of the word “another.” See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, Like other residual clauses, it need not use the same language as the clauses it follows to derive meaning from those clauses. See, e.g., (slip op., at 13); v. United States, 550 U.S. 192, 217–218 (2007) (SCALA, J., dissenting). Where, as here, a residual clause includes an ambiguous word like “discriminates,” we must look to the clauses that precede it to guide our understanding of its scope. n some sense, my task in giving meaning to the statu­ tory term “discriminates” is no different from the major­ ity’s: to determine what type of differential treatment the statute forbids. The first three clauses provide important clues that the statute forbids singling out rail carriers from other commercial and industrial taxpayers because commercial and industrial taxpayers are the ones who pay taxes on “commercial and industrial property.” The major­ ity pursues the same logical train of thought when it opines that “the category of ‘similarly situated’ (b)(4) comparison classes must include commercial and indus- trial taxpayers” because “[t]here is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads.” Ante, at 6. Where we part ways is in the inferences we draw from the statutory context. Treating subsection (b)(4) as a residual clause does not require the grammatical distortions that the majority alleges. The word “discriminates” in subsection (b)(4) is not a referential phrase whose antecedent is uncertain. f 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting it were, then it would be necessary to select an antecedent that would fit grammatically in place of “discriminates.” nstead, look to (b)(1) to (3) merely to clarify an ambigu- ity in the meaning of “discriminates,” a task that does not require me to “dragoon” the language of the prior clauses into subsection (b)(4). Nor does my approach rely on the first three clauses of to supply a general limitation on the independ­ ent prohibition that appears in subsection (b)(4). See United (SCALA, J., concurring in part and dissenting in part) (criticizing this type of argument). That is what Alabama sought to do in CSX when it argued that subsection (b)(4) is limited to property taxes (or their equivalent “in lieu” taxes). Ante, at 7; CSX (majority opin­ ion). joined the majority in rejecting that argument. 97 (dissenting opinion). But whereas there is no un­ certainty about the meaning of “taxes” in subsection (b)(4) that would justify importing the property tax limitation from the three preceding subsections, 84–285 (majority opinion), there is a good deal of uncertainty about the meaning of “discriminates.” This uncertainty justifies looking to the three previous clauses to under­ stand the type of differential treatment is meant to prohibit. –299 (dissenting opinion); see Harrison v. PPG ndustries, nc., 588– 589 (1980). And those three previous clauses easily supply the answer to the comparison class question. C Unwilling to so limit the range of available comparison classes, the majority takes an approach to determining which individuals are “similarly situated” for purposes of the statute that “is almost entirely ad hoc,” 15 (SCALA, J., dissenting). t asserts that the compar­ ison class will “depen[d] on the theory of discrimination Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting alleged in the claim.” Ante, at 4–5. Sometimes the com­ parison class will be “all other commercial and industrial taxpayers,” sometimes it will be “the railroad’s competi­ tors” in a particular jurisdiction, and sometimes it may be some other comparison class entirely. The sole evidence on which the majority relies to con­ clude that competitors are similarly situated, and there­ fore qualify as a comparison class, is the professed pur­ poses of the Act: “to ‘restore the financial stability of the railway system of the United States,’ while ‘foster[ing] competition among all carriers by railroad and other modes of transportation.’ ” Ante, at 6 (quoting (b)(2)). nterpreting statutory text solely in light of purpose, absent any reliance on text or structure, is dangerous business because it places courts in peril of substituting their policy judgment for that of Congress. n considering statutory purpose, therefore, we should be careful that any inferences of purpose are tied to text rather than instinct. The majority throws such caution to the wind. ts two- sentence argument is a perfect illustration of the dangers of a purely purpose-based approach. The majority cherry- picks two of a number of stated goals of a complex piece of legislation over 100 pages long and assumes that this specific provision was assigned to those specific purposes. And then it interprets the statute to perform in the man­ ner the majority believes is best designed to “restore financial stability” and “foster competition.” Ante, at 6 (alteration omitted). have no reason to doubt the economic soundness of the majority’s conclusion that discrimination between rail carriers and their competitors threatens their financial stability and impedes competition, but lack the major- ity’s certitude that is designed to further those goals by combatting that evil, at least in the way the ma­ jority asserts. nstead, the first three subsections provide 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting strong textual evidence that was designed to stabilize rail carriers by protecting them from discrimina­ tion against interstate commerce. And they provide evi­ dence of Congress’ chosen mechanism for accomplishing that goal: tying the fate of interstate rail carriers to the broader class of commercial and industrial taxpayers. See The introductory clause of provides further evidence that the evil at which subsection (b)(4) is tar- geted is not discrimination between rail carriers and their competitors, but “acts [that] unreasonably burden and discriminate against interstate commerce.” The majority’s response to this evidence—that the Court rejected a simi­ lar argument when it refused to limit subsection (b)(4) to property taxes or their kin, ante, at 7—is a non sequitur. The introductory clause contains no reference to property taxes that “binds its four subsections together” as prohibi­ tions on discriminatory property taxes. (internal quotation marks omitted). But it does have a reference to discrimination against interstate commerce, which does tie the sections together to serve that common statutory purpose. This, in turn, weighs against the majority’s inferences about how relates to the stated pur­ poses of the 4–R Act. The majority’s conclusion that competitors are a permis­ sible comparison class completely ignores these contextual clues, permitting subsection (b)(4) to serve different statu­ tory goals by a different mechanism than its three prede­ cessor clauses. And it leads to odd inconsistencies. f we were to understand the provision as prohibiting only discrimination between rail carriers and their competitors, then it might well further the goal of promoting competi­ tion between interstate carriers. But the majority instead selects a shifting-comparison-class approach, requiring rail carriers to be treated at least as well as their competi­ tors and any other similarly situated taxpayers. See ante, Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting at 4–5. This most-favored taxpayer status is a position the competitors do not enjoy, so the majority’s position could result in tax schemes that impede competition between interstate carriers rather than promote it. dentifying “similarly situated” taxpayers by the undis­ ciplined approach the majority endorses could well lead to other unanticipated consequences. This is why the policy judgments needed to link statutory mechanisms to statu­ tory purposes are best left to Congress. f this Court is going to adopt a shifting-comparison-class approach to then it should at least demand a stronger textual link between the comparison class a claimant seeks to import into subsection (b)(4) and any purpose that the claimant argues it serves. Because the majority adopts an interpretation of that is not grounded in the text, it should come as no surprise that this interpretation is difficult to apply, as this case demonstrates. t is easy to see how, accepting water carriers as a comparison class, the scheme treats water carriers and rail carriers differently when it grants water carriers, but not rail carriers, an exemption from the sales tax. Ala. Code dentifying the difference in treatment between rail and motor car- riers, by contrast, requires a good deal more imagination. The majority’s approach exhibits that imagination. t glosses over the general applicability of the provisions that apply to rail and motor carriers, stating that “[t]he State applies the [sales or use] tax, at the usual 4% rate, to railroads’ purchase or use of diesel fuel for their rail oper­ ations,” but “exempts from the tax purchases and uses of diesel fuel made by [motor carriers].” Ante, at 1. A quick glimpse at the code reveals that this is not quite the case. The applicability of the sales and use taxes does not de­ pend on the identity of the purchaser, but on whether the 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting purchaser pays another excise tax, 325(b), which in turn depends on the nature of the product purchased and its use, §328, 40–17–329, which in turn merely correlates to the carriers’ operations. As far as can tell, the rail carriers use dyed diesel that is exempt from the motor fuel tax—and therefore subject to the sales and use taxes—as a matter of choice rather than necessity. Dyed diesel has no special properties that make it more suitable for use in a train engine; the dye merely identifies it as exempt from the federal excise tax, 322(21). And no law prohibits rail carriers from using undyed diesel. To the contrary, it is the motor carriers who are prohibited from using the dyed variant for on-road use. Assuming arguendo that state law provides that only dyed diesel may be used in rail operations, it becomes a little easier to make an argument that the State treats rail carriers differently in this case. But the majority still faces a line-drawing problem. s it necessary that the good subject to the challenged tax be the same as the good on which the competitor enjoys an exemption? Could a rail carrier that relies on natural gas rather than diesel for motive power make the same claim of discrimination if natural gas is not entitled to the same sales-tax exemption as diesel? s it necessary that the rail carrier and its competitor rely on the good for the same purpose? Could a rail carrier that uses diesel for motive power challenge a hypothetical provision that exempted from the sales and use taxes diesel that motor carriers use for refrigeration in refrigerated trailers? The majority never answers these questions. “Sufficient unto the day is the evil thereof,” it intones. Ante, at 6. “That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: pro­ vide guidance concrete enough to ensure that the” statute is applied consistently. 550 U.S., 15 (SCALA, Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting J., dissenting). We have demanded clarity from Congress when it comes to statutes that “se[t] limits upon the taxa­ tion authority of state government, an authority we have recognized as central to state sovereignty.” Department of Revenue of Ore. v. ACF ndustries, nc., 344–345 (1994). We should demand the same of ourselves when we interpret those statutes. Yet after today’s deci­ sion, lower courts, soon to be met with an oyster’s shellful of comparison classes, ante, will have no idea how to determine when a tax exemption that is not tied to the taxpayer’s status constitutes differential treatment of two taxpayers. * * * The majority’s interpretation of (1) derails ambiguous text from clarifying context. The result it reaches is predictably unworkable. And it prolongs Ala­ bama’s burden of litigating a baseless claim of discrimina­ tion that should have been dismissed long ago. respect­ fully dissent

Justice Gorsuch

majority

Virginia Uranium, Inc. v. Warren

https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/

https://www.courtlistener.com/api/rest/v3/clusters/4630085/

2018-017

Virginia Uranium insists that the federal Atomic Energy Act preempts a state law banning uranium mining, but we do not see it. True, the AEA gives the Nuclear Regulatory Commission significant authority over the milling, trans- fer, use, and disposal of uranium, as well as the construc- tion and operation of nuclear power plants. But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on pri- vate lands within their borders. Nor do we see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives. And we are hardly free to extend a federal statute to a sphere Con- gress was well aware of but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write. 2 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. I Virginia Uranium thought its plan was pretty straight- forward. First, the company wanted to use conventional mining techniques to extract raw uranium ore from a site near Coles Hill, Virginia. Next, it intended to mill that ore into a usable form. Typically performed at the mine site, milling involves grinding the ore into sand-sized grains and then exposing it to a chemical solution that leaches out pure uranium. Once dried, the resulting mixture forms a solid “yellowcake,” which the company planned to sell to enrichment facilities that produce fuel for nuclear reactors. Finally, because the leaching process does not remove all of the uranium from the ore, the company expected to store the leftover “tailings” near the mine to reduce the chances of contaminating the air or water. But putting the plan into action didn’t prove so simple. Pursuant to the AEA, ch. 724, 60 Stat. 755, 42 U.S. C. §2011 et seq., the NRC regulates milling and tailing stor- age activities nationwide, and it has issued an array of rules on these subjects. See, e.g., 10 CFR §40 et seq. (2018). None of those, though, proved the real problem for Virginia Uranium. The company hit a roadblock even before it could get to the point where the NRC’s rules kick in: State law flatly prohibits uranium mining in Virginia. See Va. Code Ann. §§45.1–161.292:30, 45.1–283 (2013); 848 F.3d 590, 593–594 (CA4 2017). To overcome that obstacle, Virginia Uranium filed this lawsuit. The company alleged that, under the Constitu- tion’s Supremacy Clause, the AEA preempts state uranium mining laws like Virginia’s and ensconces the NRC as the lone regulator in the field. And because the NRC’s regula- tions say nothing about uranium mining, the company continued, it remains free to mine as it will in Virginia or elsewhere. Both the district court and a divided panel of the Fourth Circuit rejected the company’s argument. The courts Cite as: 587 U. S. ____ (2019) 3 Opinion of GORSUCH, J. acknowledged that the AEA affords the NRC considerable authority over the nuclear fuel life cycle. But both courts found missing from the AEA any hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Given the significance of the question presented, we granted review. 584 U. S. ___ (2018). II The Supremacy Clause supplies a rule of priority. It provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof,” are “the supreme Law of the Land . . . any Thing in the Constitu- tion or Laws of any state to the Contrary notwithstand- ing.” Art. VI, cl. 2. This Court has sometimes used differ- ent labels to describe the different ways in which federal statutes may displace state laws—speaking, for example, of express, field, and conflict preemption. But these cate- gories “are not rigidly distinct.” Crosby v. National For- eign Trade Council, 530 U.S. 363, 372, n. 6 (2000) (inter- nal quotation marks omitted). And at least one feature unites them: Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law; a litigant must point specifically to “a constitutional text or a federal statute” that does the displacing or conflicts with state law. Puerto Rico Dept. of Consumer Affairs v. ISLA Petro- leum Corp., 485 U.S. 495, 503 (1988); see also 3 J. Story, Commentaries on the Constitution of the United States §1831, p. 694 (1st ed. 1833) (“the supremacy of the laws is attached to those only, which are made in pursuance of the constitution”). Before us, Virginia Uranium contends that the AEA (and only the AEA) unseats state uranium mining regula- tions and that it does so under the doctrines of both field and conflict preemption. We examine these arguments 4 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. about the AEA’s preemptive effect much as we would any other about statutory meaning, looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation. Here, no more than in any statutory interpretation dispute, is it enough for any party or court to rest on a supposition (or wish) that “it must be in there somewhere.” A We begin with the company’s claim that the text and structure of the AEA reserve the regulation of uranium mining for the purpose of addressing nuclear safety con- cerns to the NRC alone—and almost immediately prob- lems emerge. Unlike many federal statutes,1 the AEA contains no provision preempting state law in so many words. Even more pointedly, the statute grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. Companies like Virginia Uranium must abide the NRC’s rules and regulations if they wish to handle en- riched uranium, to mill uranium ore or store tailings, or to build or run a nuclear power plant. See 42 U.S. C. §§2111(a), 2113(a), 2073. But when it comes to mining, the statute speaks very differently, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature.” §2092 (em- phasis added). As the government itself has conceded, this means that “uranium mining” lies “outside the NRC’s jurisdiction,” Brief for United States as Amicus Curiae 14, and the agency’s grip takes hold only “at the mill, rather than at the mine,” In re Hydro Resources, Inc., 63 N. R. C. 510, 512 (2006). —————— 1 See, e.g., Chamber of Commerce of United States of America v. Whit- ing, 563 U.S. 582, 594–595 (2011); Geier v. American Honda Motor Co., 529 U.S. 861, 867 (2000). Cite as: 587 U. S. ____ (2019) 5 Opinion of GORSUCH, J. What the text states, context confirms. After announc- ing a general rule that mining regulation lies outside the NRC’s jurisdiction, the AEA carves out a notably narrow exception. On federal lands, the statute says, the NRC may regulate uranium mining. §2097. And if the federal government wants to control mining of uranium on private land, the AEA tells the NRC exactly what to do: It may purchase or seize the land by eminent domain and make it federal land. §2096. Congress thus has spoken directly to the question of uranium mining on private land, and every bit of what it’s said indicates that state authority remains untouched. Later amendments to the AEA point to the same conclu- sion. Some years after the statute’s passage, Congress added a provision, currently codified in §2021, allowing the NRC to devolve certain of its regulatory powers to the States. Unsurprisingly, Congress indicated that the NRC must maintain regulatory control over especially sensitive activities like the construction of nuclear power plants. §2021(c). But under §2021(b) the NRC may now, by agreement, pass to the States some of its preexisting authorities to regulate various nuclear materials “for the protection of the public health and safety from radiation hazards.” Out of apparent concern that courts might (mis)read these new provisions as prohibiting States from regulating any activity even tangentially related to nuclear power without first reaching an agreement with the NRC, Congress added subsection (k): “Nothing in this section [that is, §2021] shall be con- strued to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” Section 2021, thus, did nothing to extend the NRC’s power to activities, like mining, historically beyond its reach. Instead, it served only to allow the NRC to share 6 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. with the States some of the powers previously reserved to the federal government. Even then, the statute explained in subsection (k) that States remain free to regulate the activities discussed in §2021 for purposes other than nuclear safety without the NRC’s consent. Indeed, if anything, subsection (k) might be described as a non- preemption clause. Virginia Uranium’s case hinges on a very different construction of subsection (k). The company suggests that, properly read, the provision greatly expands the preemptive effect of the AEA and demands the displace- ment of any state law (touching on mining or any other subject) if that law was enacted for the purpose of protect- ing the public against “radiation hazards.” And, the com- pany adds, Virginia’s law bears just such an impermissible purpose. In our view, this reading nearly turns the provision on its head. Subsection (k) does not displace traditional state regulation over mining or otherwise extend the NRC’s grasp to matters previously beyond its control. It does not expose every state law on every subject to a searching judicial inquiry into its latent purposes. Instead and much more modestly, it clarifies that “nothing in this [new] section [2021]”—a section allowing for the devolution-by-agreement of federal regulatory authority— should be construed to curtail the States’ ability to regu- late the activities discussed in that same section for pur- poses other than protecting against radiation hazards. So only state laws that seek to regulate the activities dis- cussed in §2021 without an NRC agreement—activities like the construction of nuclear power plants—may be scrutinized to ensure their purposes aim at something other than regulating nuclear safety. Really, to accom- plish all it wants, Virginia Uranium would have to per- suade us to read 13 words out of the statute and add 2 more: Cite as: 587 U. S. ____ (2019) 7 Opinion of GORSUCH, J. Nothing in this section shall be construed to affect the authority of any State or local agency to may regulate activities only for purposes other than protection against radiation hazards. That may be a statute some would prefer, but it is not the statute we have. Just consider what would follow from Virginia Urani- um’s interpretation. Not only would States be prohibited from regulating uranium mining to protect against radia- tion hazards; the federal government likely would be barred from doing so as well. After all, the NRC has long believed, and still maintains, that the AEA affords it no authority to regulate uranium mining on private land. Nor does Virginia Uranium dispute the federal govern- ment’s understanding. Admittedly, if Virginia Uranium were to prevail here, the NRC might respond by changing course and seeking to regulate uranium mining for the first time. But given the statute’s terms, the prospects that it might do so successfully in the face of a legal chal- lenge appear gloomy. Admittedly, as well, federal air and water and other regulations might apply at a uranium mine much as at any other workplace. But the possibility that both state and federal authorities would be left un- able to regulate the unique risks posed by an activity as potentially hazardous as uranium mining seems more than a little unlikely, and quite a lot to find buried deep in subsection (k). Talk about squeezing elephants into mouseholes. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). B If the best reading of the AEA doesn’t require us to hold the state law before us preempted, Virginia Uranium takes another swing in the same direction. Only this time, the company submits, our precedents have adopted a different, even if maybe doubtful, reading of the AEA that 8 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. we must follow. Most prominently, Virginia Uranium points to this Court’s decision in Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190 (1983). But here, too, problems quickly appear. Pacific Gas rejected a preemption challenge to a state law prohibiting the construction of new nuclear power plants. Along the way, the Court expressly dismissed the notion that §2021 establishes the federal government as “the sole regulator of all matters nuclear.” Id., at 205. The Court observed that subsection (k) addresses itself only to “the preemptive effect of ‘this section,’ that is [§2021].” Id., at 210. And the Court acknowledged that subsection (k) does not “cut back on pre-existing state authority outside the NRC’s jurisdiction,” a field that surely includes uranium mining. Id., at 209. None of this remotely helps Virginia Urani- um’s cause. Still, Virginia Uranium seeks to make the best of a bad situation. The company points out that Pacific Gas upheld the state law at issue there only after observing that it was enacted out of concern with economic development, not for the purpose of addressing radiation safety hazards. Id., at 205. From this, the company reasons, we should infer that any state law enacted with the purpose of addressing nuclear hazards must fall thanks to our precedent. But even that much does not follow. Since the passage of the AEA, the NRC has always played a significant role in regulating the construction of nuclear power plants. Indeed, under §2021(c) this remains one area where the NRC generally cannot devolve its responsibilities to the States. See id., at 197–198, 206–207. And because §2021 classifies the construction of nuclear power plants as one of the core remaining areas of special federal concern, any state law regulating that activity risks being subjected to an inquiry into its purposes under subsection (k). But the Cite as: 587 U. S. ____ (2019) 9 Opinion of GORSUCH, J. activity Virginia’s law regulates—mining on private land—isn’t one the AEA has ever addressed, and it isn’t one §2021 discusses, so subsection (k) does not authorize any judicial inquiry into state legislative purpose in this case. Admittedly, there is a wrinkle here. Pacific Gas seemed to accept California’s argument that its law addressed whether new power plants may be built, while the NRC’s regulatory power under §2021(c) extends only to the ques- tion how such plants are constructed and operated. Id., at 212. And accepting (without granting) these premises, it would appear that California’s law did not implicate an activity addressed by §2021, so an inquiry into state legis- lative purpose under subsection (k) was not statutorily authorized. Yet Pacific Gas inquired anyway, perhaps on the unstated belief that the state law just came “too close” to a core power §2021(c) reserves to the federal govern- ment. Does that mean we must do the same? Certainly Virginia Uranium sees it that way. We do not. Just because Pacific Gas may have made more of state legislative purposes than the terms of the AEA allow does not mean we must make more of them yet. It is one thing to do as Pacific Gas did and inquire exact- ingly into state legislative purposes when state law pro- hibits a regulated activity like the construction of a nuclear plant, and thus comes close to trenching on core federal powers reserved to the federal government by the AEA. It is another thing to do as Virginia Uranium wishes and impose the same exacting scrutiny on state laws prohibit- ing an activity like mining far removed from the NRC’s historic powers. And without some clearer congressional mandate suggesting an inquiry like that would be appro- priate, we decline to undertake it on our own authority. The preemption of state laws represents “a serious intru- sion into state sovereignty.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996) (plurality opinion). And to order 10 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. preemption based not on the strength of a clear congres- sional command, or even on the strength of a judicial gloss requiring that much of us, but based only on a doubtful extension of a questionable judicial gloss would represent not only a significant federal intrusion into state sover- eignty. It would also represent a significant judicial intru- sion into Congress’s authority to delimit the preemptive effect of its laws. Being in for a dime doesn’t mean we have to be in for a dollar. This Court’s later cases confirm the propriety of re- straint in this area. In a decision issued just a year after Pacific Gas (and by the same author), this Court consid- ered whether the AEA preempted state tort remedies for radiation injuries after a nuclear plant accident. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). In doing so, the Court did not inquire into state legislative purposes, ap- parently because it thought state tort law (unlike a law prohibiting the construction of a nuclear power plant) fell beyond any fair understanding of the NRC’s reach under the AEA. Id., at 251. Exactly the same, as we have seen, can be said of Virginia’s mining law. In fact, if the Silk- wood Court had inquired into state legislative purposes, the law there might well have been harder to sustain than the one now before us. State tort laws, after all, plainly intend to regulate public safety. And as applied in Silk- wood, state tort law sought to regulate the safety of a nuclear plant’s operations, an area of special federal inter- est under §2021(c). Id., at 256. Nothing comparable, of course, can be said of the mining regulations before us. Some years later, this Court in English v. General Elec. Co., 496 U.S. 72 (1990), went further still, casting doubt on whether an inquiry into state legislative purposes had been either necessary or appropriate in Pacific Gas itself. 496 U.S., at 84–85, n. 7 (“Whether the suggestion of the majority in Pacific Gas that legislative purpose is relevant to the definition of the pre-empted field is part of the Cite as: 587 U. S. ____ (2019) 11 Opinion of GORSUCH, J. holding of that case is not an issue before us today” (em- phasis added)). If Pacific Gas and its progeny alone marked our path, this case might be a close one, as our dissenting colleagues suggest. Post, at 3–5 (opinion of ROBERTS, C. J.). But for us any lingering doubt dissipates when we consult other cases in this area and this Court’s traditional tools of statutory interpretation.2 Start with the fact that this Court has generally treated field preemption inquiries like this one as depending on what the State did, not why it did it. Indeed, this Court has analyzed most every other modern field preemption doctrine dispute in this way—from immigration, Arizona v. United States, 567 U.S. 387 (2012), to arbitration, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), to foreign affairs, Crosby v. National Foreign Trade Coun- cil, 530 U.S. 363 (2000), to railroads, Kurns v. Railroad Friction Products Corp., 565 U.S. 625 (2012), to energy, Hughes v. Talen Energy Marketing, LLC, 578 U. S. ___ (2016), to civil procedure, Shady Grove Orthopedic Associ- ates, P. A. v. Allstate Ins. Co., 559 U.S. 393 (2010). It is unclear why we would proceed differently here without some clear congressional instruction requiring it.3 —————— 2 Far from “sweep[ing] well beyond the confines of this case,” as our concurring colleagues suggest, see post, at 1 (GINSBURG, J., concurring in judgment), these considerations are, to us, essential to its resolution. 3 Certainly the dissent’s case, National Meat Assn. v. Harris, 565 U.S. 452 (2012), doesn’t command a different result. There, the Court merely enforced an express statutory preemption clause that prohibited States from setting standards for handling non-ambulatory pigs that differed from federal standards. As we’ve seen, the AEA contains no comparable preemption clause forbidding Virginia to regulate mining in any way. Admittedly, National Meat went on to say that a State could not enforce a preempted animal-handling standard indirectly by banning the sale of meat from non-ambulatory pigs if its law “func- tion[ed] as a command to slaughterhouses to structure their operations in the exact way” state regulators desired rather than as federal 12 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. Our field preemption cases proceed as they do, more- over, for good reasons. Consider just some of the costs to cooperative federalism and individual liberty we would invite by inquiring into state legislative purpose too pre- cipitately. The natural tendency of regular federal judicial inquiries into state legislative intentions would be to stifle deliberation in state legislatures and encourage resort to secrecy and subterfuge. That would inhibit the sort of open and vigorous legislative debate that our Constitution recognizes as vital to testing ideas and improving laws. In Virginia Uranium’s vision as well, federal courts would have to allow depositions of state legislators and gover- nors, and perhaps hale them into court for cross- examination at trial about their subjective motivations in passing a mining statute. And at the end of it all, federal courts would risk subjecting similarly situated persons to radically different legal rules as judges uphold and strike down materially identical state regulations based only on the happenstance of judicial assessments of the “true” intentions lurking behind them. In light of all this, it can surprise no one that our precedents have long warned against undertaking potential misadventures into hidden state legislative intentions without a clear statutory man- date for the project. See, e.g., Shady Grove, 559 U.S., at 404–405; Rowe v. New Hampshire Motor Transp. Assn., 552 U.S. 364, 373–374 (2008); Palmer v. Thompson, 403 U.S. 217, 225 (1971); Arizona v. California, 283 U.S. 423, 455, n. 7 (1931) (collecting cases). To be sure, Virginia Uranium insists that we don’t need to worry about concerns like these in this case. We don’t, the company says, because Virginia has admitted that it enacted its law with the (impermissible) purpose of pro- —————— standards required. Id., at 464. But here, by contrast, no one sug- gests that Virginia’s mining law requires anyone to disregard NRC regulations. Cite as: 587 U. S. ____ (2019) 13 Opinion of GORSUCH, J. tecting the public from nuclear safety hazards. But the Commonwealth denies making any such admission. In- stead, it says it has merely accepted as true the allega- tions in the company’s complaint about the intentions animating state law for purposes of the Commonwealth’s own motion to dismiss this suit under Federal Rule of Civil Procedure 12(b)(6). If the case were to proceed be- yond the pleadings stage, Virginia insists, a more search- ing judicial inquiry into the law’s motivation would be inevitable. Whoever may be right about the status of Virginia’s admissions in this case, though, the point re- mains that following Virginia Uranium’s lead would re- quire serious intrusions into state legislative processes in future cases. Beyond these concerns, as well, lie well-known concep- tual and practical ones this Court has also advised against inviting unnecessarily. State legislatures are composed of individuals who often pursue legislation for multiple and unexpressed purposes, so what legal rules should deter- mine when and how to ascribe a particular intention to a particular legislator? What if an impermissible intention existed but wasn’t necessary to her vote? And what per- centage of the legislature must harbor the impermissible intention before we can impute it to the collective institu- tion? Putting all that aside, how are courts supposed to conduct a reasonable inquiry into these questions when recorded state legislative history materials are often not as readily available or complete as their federal counter- parts? And if trying to peer inside legislators’ skulls is too fraught an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text where we began? Even Pacific Gas warned future courts against too hastily accepting a litigant’s invitation to “become embroiled in attempting to ascertain” state legis- lative “motive[s],” acknowledging that such inquiries “often” prove “unsatisfactory venture[s]. What motivates 14 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” 461 U.S., at 216 (citation omitted). See also Shady Grove, 559 U.S., at 403–404, n. 6; Palmer, 403 U.S., at 225; Edwards v. Aguillard, 482 U.S. 578, 636–639 (1987) (Scalia, J., dis- senting). Cf. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998). We think these warnings wise, and we heed them today. C If the AEA doesn’t occupy the field of radiation safety in uranium mining, Virginia Uranium suggests the statute still displaces state law through what’s sometimes called conflict preemption. In particular, the company suggests, Virginia’s mining law stands as an impermissible “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). On Virginia Uranium’s account, Congress sought to capture the benefits of developing nuclear power while mitigating its safety and environmental costs. And, the company contends, Virginia’s moratorium disrupts the delicate “balance” Congress sought to achieve between these benefits and costs. Maybe the text of the AEA doesn’t touch on mining in so many words, but its authority to regulate later stages of the nuclear fuel life cycle would be effectively undermined if mining laws like Virginia’s were allowed. A sound preemption analysis cannot be as simplistic as that. No more than in field preemption can the Supremacy Clause be deployed here to elevate abstract and unenacted legislative desires above state law; only federal laws “made in pursuance of ” the Constitution, through its prescribed processes of bicameralism and presentment, are entitled to preemptive effect. Art. VI, cl. 2; ISLA Petroleum, 485 U.S., at 503. So any “[e]vidence of Cite as: 587 U. S. ____ (2019) 15 Opinion of GORSUCH, J. pre-emptive purpose,” whether express or implied, must therefore be “sought in the text and structure of the statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Sound and well-documented reasons underlie this rule too. Efforts to ascribe unenacted purposes and objectives to a federal statute face many of the same challenges as inquiries into state legislative intent. Trying to discern what motivates legislators individually and collectively invites speculation and risks overlooking the reality that individual Members of Congress often pursue multiple and competing purposes, many of which are compromised to secure a law’s passage and few of which are fully realized in the final product. Hefty inferences may be required, as well, when trying to estimate whether Congress would have wanted to prohibit States from pursuing regulations that may happen to touch, in various degrees and different ways, on unenacted federal purposes and objectives. Worse yet, in piling inference upon inference about hidden legislative wishes we risk displacing the legislative compromises actually reflected in the statutory text— compromises that sometimes may seem irrational to an outsider coming to the statute cold, but whose genius lies in having won the broad support our Constitution demands of any new law. In disregarding these legislative compromises, we may only wind up displacing perfectly legitimate state laws on the strength of “purposes” that only we can see, that may seem perfectly logical to us, but that lack the democratic provenance the Constitution demands before a federal law may be declared supreme. See, e.g., Pacific Gas, 461 U.S., at 222 (acknowledging that under the AEA “the promotion of nuclear power is not to be accomplished ‘at all costs’ ”); Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U. S. ___, ___–___ (2018) (slip op., at 14–15); Aguillard, 482 U.S., at 636–639 (Scalia, J., dissenting); United States v. O’Brien, 391 U.S. 16 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. 367, 382–384 (1968); Fletcher v. Peck, 6 Cranch 87, 130 (1810). So it may be that Congress meant the AEA to promote the development of nuclear power. It may be that Congress meant the AEA to balance that goal against various safety concerns. But it also may be that Members of Congress held many other disparate or conflicting goals in mind when they voted to enact and amend the AEA, and many different views on exactly how to manage the competing costs and benefits. If polled, they might have reached very different assessments, as well, about the consistency of Virginia’s law with their own purposes and objectives. The only thing a court can be sure of is what can be found in the law itself. And every indication in the law before us suggests that Congress elected to leave mining regulation on private land to the States and grant the NRC regulatory authority only after uranium is removed from the earth. That compromise may not be the only permissible or even the most rationally attractive one, but it is surely both permissible and rational to think that Congress might have chosen to regulate the more novel aspects of nuclear power while leaving to States their traditional function of regulating mining activities on private lands within their boundaries.4 As an alternative to proceeding down the purposes-and- objectives branch of conflict preemption, Virginia Uranium might have pursued another. Our cases have held that we —————— 4 The concurrence takes a slightly different tack. It seems to accept the premise that the Court can divine the unenacted “purposes” and “objectives” underlying the AEA and weigh them against Virginia’s mining law. But in rejecting Virginia Uranium’s argument, it winds up emphasizing repeatedly that the text of the AEA does not address mining. See post, at 12–14. That may not fully address Virginia Uranium’s assertion that state mining regulations interfere with a latent statutory purpose lying beyond the text, but it does highlight the propriety of confining our inquiries to the statute’s terms. Cite as: 587 U. S. ____ (2019) 17 Opinion of GORSUCH, J. can sometimes infer a congressional intent to displace a state law that makes compliance with a federal statute impossible. English, 496 U.S., at 79. But Virginia Uranium hasn’t pursued an argument along any of these lines, and understandably so. Not only can Virginia Uranium comply with both state and federal laws; it is also unclear whether laws like Virginia’s might have a meaningful impact on the development of nuclear power in this country. Some estimate that the United States currently imports over 90 percent of the uranium used in this country. App. to Pet. for Cert. 19a. Domestic uranium mines currently exist on federal lands as well and are thus beyond the reach of state authorities. Ibid. And if the federal government concludes that development of the Coles Hill deposit or any other like it is crucial, it may always purchase the site (or seize it through eminent domain) under the powers Congress has supplied. 42 U.S. C. §2096. All this may be done without even amending the AEA, itself another course which Congress is always free to pursue—but which this Court should never be tempted into pursuing on its own. * The judgment of the court of appeals is Affirmed. Cite as: 587 U. S. ____ (2019) 1 GINSBURG GINSBURG , J., concurring , J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 16–1275 _________________ VIRGINIA URANIUM, INC., ET AL., PETITIONERS v. JOHN WARREN, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 17, 2019] JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, concurring in the judgment.

Virginia Uranium insists that the federal Atomic Energy Act preempts a state law banning uranium mining, but we do not see it. True, the AEA gives the Nuclear Regulatory Commission significant authority over the milling, trans- fer, use, and disposal of uranium, as well as the construc- tion and operation of nuclear power plants. But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on pri- vate lands within their borders. Nor do we see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives. And we are hardly free to extend a federal statute to a sphere Con- gress was well aware of but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write. 2 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. I Virginia Uranium thought its plan was pretty straight- forward. First, the company wanted to use conventional mining techniques to extract raw uranium ore from a site near Coles Hill, Virginia. Next, it intended to mill that ore into a usable form. Typically performed at the mine site, milling involves grinding the ore into sand-sized grains and then exposing it to a chemical solution that leaches out pure uranium. Once dried, the resulting mixture forms a solid “yellowcake,” which the company planned to sell to enrichment facilities that produce fuel for nuclear reactors. Finally, because the leaching process does not remove all of the uranium from the ore, the company expected to store the leftover “tailings” near the mine to reduce the chances of contaminating the air or water. But putting the plan into action didn’t prove so simple. Pursuant to the AEA, ch. 724, 42 U.S. C. et seq., the NRC regulates milling and tailing stor- age activities nationwide, and it has issued an array of rules on these subjects. See, e.g., et seq. (2018). None of those, though, proved the real problem for Virginia Uranium. The company hit a roadblock even before it could get to the point where the NRC’s rules kick in: State law flatly prohibits uranium mining in Virginia. See –161.292:30, 45.1–283 (2013); To overcome that obstacle, Virginia Uranium filed this lawsuit. The company alleged that, under the Constitu- tion’s Supremacy Clause, the AEA preempts state uranium mining laws like Virginia’s and ensconces the NRC as the lone regulator in the field. And because the NRC’s regula- tions say nothing about uranium mining, the company continued, it remains free to mine as it will in Virginia or elsewhere. Both the district court and a divided panel of the Fourth Circuit rejected the company’s argument. The courts Cite as: 587 U. S. (2019) 3 Opinion of GORSUCH, J. acknowledged that the AEA affords the NRC considerable authority over the nuclear fuel life cycle. But both courts found missing from the AEA any hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Given the significance of the question presented, we granted review. 584 U. S. (2018). II The Supremacy Clause supplies a rule of priority. It provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof,” are “the supreme Law of the Land any Thing in the Constitu- tion or Laws of any state to the Contrary notwithstand- ing.” Art. VI, cl. 2. This Court has sometimes used differ- ent labels to describe the different ways in which federal statutes may displace state laws—speaking, for example, of express, field, and conflict preemption. But these cate- gories “are not rigidly distinct.” (inter- nal quotation marks omitted). And at least one feature unites them: Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law; a litigant must point specifically to “a constitutional text or a federal statute” that does the displacing or conflicts with state law. Puerto Rico Dept. of Consumer ; see also 3 J. Story, Commentaries on the Constitution of the United States p. 694 (1st ed. 1833) (“the supremacy of the laws is attached to those only, which are made in pursuance of the constitution”). Before us, Virginia Uranium contends that the AEA (and only the AEA) unseats state uranium mining regula- tions and that it does so under the doctrines of both field and conflict preemption. We examine these arguments 4 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. about the AEA’s preemptive effect much as we would any other about statutory meaning, looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation. Here, no more than in any statutory interpretation dispute, is it enough for any party or court to rest on a supposition (or wish) that “it must be in there somewhere.” A We begin with the company’s claim that the text and structure of the AEA reserve the regulation of uranium mining for the purpose of addressing nuclear safety con- cerns to the NRC alone—and almost immediately prob- lems emerge. Unlike many federal statutes,1 the AEA contains no provision preempting state law in so many words. Even more pointedly, the statute grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. Companies like Virginia Uranium must abide the NRC’s rules and regulations if they wish to handle en- riched uranium, to mill uranium ore or store tailings, or to build or run a nuclear power plant. See 42 U.S. C. 2113(a), 2073. But when it comes to mining, the statute speaks very differently, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature.” (em- phasis added). As the government itself has conceded, this means that “uranium mining” lies “outside the NRC’s jurisdiction,” Brief for United States as Amicus Curiae 14, and the agency’s grip takes hold only “at the mill, rather than at the mine,” In re Hydro Resources, Inc., 63 N. R. C. 510, 512 (2006). —————— 1 See, e.g., Chamber of Commerce of United States of ; Cite as: 587 U. S. (2019) 5 Opinion of GORSUCH, J. What the text states, context confirms. After announc- ing a general rule that mining regulation lies outside the NRC’s jurisdiction, the AEA carves out a notably narrow exception. On federal lands, the statute says, the NRC may regulate uranium mining. And if the federal government wants to control mining of uranium on private land, the AEA tells the NRC exactly what to do: It may purchase or seize the land by eminent domain and make it federal land. Congress thus has spoken directly to the question of uranium mining on private land, and every bit of what it’s said indicates that state authority remains untouched. Later amendments to the AEA point to the same conclu- sion. Some years after the statute’s passage, Congress added a provision, currently codified in allowing the NRC to devolve certain of its regulatory powers to the States. Unsurprisingly, Congress indicated that the NRC must maintain regulatory control over especially sensitive activities like the construction of nuclear power plants. But under the NRC may now, by agreement, pass to the States some of its preexisting authorities to regulate various nuclear materials “for the protection of the public health and safety from radiation hazards.” Out of apparent concern that courts might (mis)read these new provisions as prohibiting States from regulating any activity even tangentially related to nuclear power without first reaching an agreement with the NRC, Congress added subsection (k): “Nothing in this section [that is, shall be con- strued to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” Section 2021, thus, did nothing to extend the NRC’s power to activities, like mining, historically beyond its reach. Instead, it served only to allow the NRC to share 6 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. with the States some of the powers previously reserved to the federal government. Even then, the statute explained in subsection (k) that States remain free to regulate the activities discussed in for purposes other than nuclear safety without the NRC’s consent. Indeed, if anything, subsection (k) might be described as a non- preemption clause. Virginia Uranium’s case hinges on a very different construction of subsection (k). The company suggests that, properly read, the provision greatly expands the preemptive effect of the AEA and demands the displace- ment of any state law (touching on mining or any other subject) if that law was enacted for the purpose of protect- ing the public against “radiation hazards.” And, the com- pany adds, Virginia’s law bears just such an impermissible purpose. In our view, this reading nearly turns the provision on its head. Subsection (k) does not displace traditional state regulation over mining or otherwise extend the NRC’s grasp to matters previously beyond its control. It does not expose every state law on every subject to a searching judicial inquiry into its latent purposes. Instead and much more modestly, it clarifies that “nothing in this [new] section [2021]”—a section allowing for the devolution-by-agreement of federal regulatory authority— should be construed to curtail the States’ ability to regu- late the activities discussed in that same section for pur- poses other than protecting against radiation hazards. So only state laws that seek to regulate the activities dis- cussed in without an NRC agreement—activities like the construction of nuclear power plants—may be scrutinized to ensure their purposes aim at something other than regulating nuclear safety. Really, to accom- plish all it wants, Virginia Uranium would have to per- suade us to read 13 words out of the statute and add 2 more: Cite as: 587 U. S. (2019) 7 Opinion of GORSUCH, J. Nothing in this section shall be construed to affect the authority of any State or local agency to may regulate activities only for purposes other than protection against radiation hazards. That may be a statute some would prefer, but it is not the statute we have. Just consider what would follow from Virginia Urani- um’s interpretation. Not only would States be prohibited from regulating uranium mining to protect against radia- tion hazards; the federal government likely would be barred from doing so as well. After all, the NRC has long believed, and still maintains, that the AEA affords it no authority to regulate uranium mining on private land. Nor does Virginia Uranium dispute the federal govern- ment’s understanding. Admittedly, if Virginia Uranium were to prevail here, the NRC might respond by changing course and seeking to regulate uranium mining for the first time. But given the statute’s terms, the prospects that it might do so successfully in the face of a legal chal- lenge appear gloomy. Admittedly, as well, federal air and water and other regulations might apply at a uranium mine much as at any other workplace. But the possibility that both state and federal authorities would be left un- able to regulate the unique risks posed by an activity as potentially hazardous as uranium mining seems more than a little unlikely, and quite a lot to find buried deep in subsection (k). Talk about squeezing elephants into mouseholes. See B If the best reading of the AEA doesn’t require us to hold the state law before us preempted, Virginia Uranium takes another swing in the same direction. Only this time, the company submits, our precedents have adopted a different, even if maybe doubtful, reading of the AEA that 8 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. we must follow. Most prominently, Virginia Uranium points to this Court’s decision in Pacific & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, But here, too, problems quickly appear. Pacific rejected a preemption challenge to a state law prohibiting the construction of new nuclear power plants. Along the way, the Court expressly dismissed the notion that establishes the federal government as “the sole regulator of all matters nuclear.” The Court observed that subsection (k) addresses itself only to “the preemptive effect of ‘this section,’ that is [.” And the Court acknowledged that subsection (k) does not “cut back on pre-existing state authority outside the NRC’s jurisdiction,” a field that surely includes uranium mining. None of this remotely helps Virginia Urani- um’s cause. Still, Virginia Uranium seeks to make the best of a bad situation. The company points out that Pacific upheld the state law at issue there only after observing that it was enacted out of concern with economic development, not for the purpose of addressing radiation safety hazards. From this, the company reasons, we should infer that any state law enacted with the purpose of addressing nuclear hazards must fall thanks to our precedent. But even that much does not follow. Since the passage of the AEA, the NRC has always played a significant role in regulating the construction of nuclear power plants. Indeed, under (c) this remains one area where the NRC generally cannot devolve its responsibilities to the States. See at 197–198, 206–207. And because classifies the construction of nuclear power plants as one of the core remaining areas of special federal concern, any state law regulating that activity risks being subjected to an inquiry into its purposes under subsection (k). But the Cite as: 587 U. S. (2019) 9 Opinion of GORSUCH, J. activity Virginia’s law regulates—mining on private land—isn’t one the AEA has ever addressed, and it isn’t one discusses, so subsection (k) does not authorize any judicial inquiry into state legislative purpose in this case. Admittedly, there is a wrinkle here. Pacific seemed to accept California’s argument that its law addressed whether new power plants may be built, while the NRC’s regulatory power under (c) extends only to the ques- tion how such plants are constructed and operated. at 212. And accepting (without granting) these premises, it would appear that California’s law did not implicate an activity addressed by so an inquiry into state legis- lative purpose under subsection (k) was not statutorily authorized. Yet Pacific inquired anyway, perhaps on the unstated belief that the state law just came “too close” to a core power (c) reserves to the federal govern- ment. Does that mean we must do the same? Certainly Virginia Uranium sees it that way. We do not. Just because Pacific may have made more of state legislative purposes than the terms of the AEA allow does not mean we must make more of them yet. It is one thing to do as Pacific did and inquire exact- ingly into state legislative purposes when state law pro- hibits a regulated activity like the construction of a nuclear plant, and thus comes close to trenching on core federal powers reserved to the federal government by the AEA. It is another thing to do as Virginia Uranium wishes and impose the same exacting scrutiny on state laws prohibit- ing an activity like mining far removed from the NRC’s historic powers. And without some clearer congressional mandate suggesting an inquiry like that would be appro- priate, we decline to undertake it on our own authority. The preemption of state laws represents “a serious intru- sion into state sovereignty.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996) (plurality opinion). And to order 10 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. preemption based not on the strength of a clear congres- sional command, or even on the strength of a judicial gloss requiring that much of us, but based only on a doubtful extension of a questionable judicial gloss would represent not only a significant federal intrusion into state sover- eignty. It would also represent a significant judicial intru- sion into Congress’s authority to delimit the preemptive effect of its laws. Being in for a dime doesn’t mean we have to be in for a dollar. This Court’s later cases confirm the propriety of re- straint in this area. In a decision issued just a year after Pacific (and by the same author), this Court consid- ered whether the AEA preempted state tort remedies for radiation injuries after a nuclear plant accident. Silkwood v. Kerr-McGee Corp., In doing so, the Court did not inquire into state legislative purposes, ap- parently because it thought state tort law (unlike a law prohibiting the construction of a nuclear power plant) fell beyond any fair understanding of the NRC’s reach under the AEA. Exactly the same, as we have seen, can be said of Virginia’s mining law. In fact, if the Silk- wood Court had inquired into state legislative purposes, the law there might well have been harder to sustain than the one now before us. State tort laws, after all, plainly intend to regulate public safety. And as applied in Silk- wood, state tort law sought to regulate the safety of a nuclear plant’s operations, an area of special federal inter- est under Nothing comparable, of course, can be said of the mining regulations before us. Some years later, this Court in went further still, casting doubt on whether an inquiry into state legislative purposes had been either necessary or appropriate in Pacific itself. –85, n. 7 (“Whether the suggestion of the majority in Pacific that legislative purpose is relevant to the definition of the pre-empted field is part of the Cite as: 587 U. S. (2019) 11 Opinion of GORSUCH, J. holding of that case is not an issue before us today” (em- phasis added)). If Pacific and its progeny alone marked our path, this case might be a close one, as our dissenting colleagues suggest. Post, at 3–5 (opinion of ROBERTS, C. J.). But for us any lingering doubt dissipates when we consult other cases in this area and this Court’s traditional tools of statutory interpretation.2 Start with the fact that this Court has generally treated field preemption inquiries like this one as depending on what the State did, not why it did it. Indeed, this Court has analyzed most every other modern field preemption doctrine dispute in this way—from immigration, Arizona v. United States, to arbitration, AT&T Mobility to foreign affairs, to railroads, to energy, Hughes v. Talen Energy Marketing, LLC, 578 U. S. (2016), to civil procedure, Shady Grove Orthopedic Associ- ates, P. It is unclear why we would proceed differently here without some clear congressional instruction requiring it.3 —————— 2 Far from “sweep[ing] well beyond the confines of this case,” as our concurring colleagues suggest, see post, at 1 (GINSBURG, J., concurring in judgment), these considerations are, to us, essential to its resolution. 3 Certainly the dissent’s case, National Meat Assn. v. Harris, 565 U.S. 452 doesn’t command a different result. There, the Court merely enforced an express statutory preemption clause that prohibited States from setting standards for handling non-ambulatory pigs that differed from federal standards. As we’ve seen, the AEA contains no comparable preemption clause forbidding Virginia to regulate mining in any way. Admittedly, National Meat went on to say that a State could not enforce a preempted animal-handling standard indirectly by banning the sale of meat from non-ambulatory pigs if its law “func- tion[ed] as a command to slaughterhouses to structure their operations in the exact way” state regulators desired rather than as federal 12 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. Our field preemption cases proceed as they do, more- over, for good reasons. Consider just some of the costs to cooperative federalism and individual liberty we would invite by inquiring into state legislative purpose too pre- cipitately. The natural tendency of regular federal judicial inquiries into state legislative intentions would be to stifle deliberation in state legislatures and encourage resort to secrecy and subterfuge. That would inhibit the sort of open and vigorous legislative debate that our Constitution recognizes as vital to testing ideas and improving laws. In Virginia Uranium’s vision as well, federal courts would have to allow depositions of state legislators and gover- nors, and perhaps hale them into court for cross- examination at trial about their subjective motivations in passing a mining statute. And at the end of it all, federal courts would risk subjecting similarly situated persons to radically different legal rules as judges uphold and strike down materially identical state regulations based only on the happenstance of judicial assessments of the “true” intentions lurking behind them. In light of all this, it can surprise no one that our precedents have long warned against undertaking potential misadventures into hidden state legislative intentions without a clear statutory man- date for the project. See, e.g., Shady Grove, 559 U.S., at 404–405; ; U.S. 217, 225 (1971); 455, n. 7 (1931) (collecting cases). To be sure, Virginia Uranium insists that we don’t need to worry about concerns like these in this case. We don’t, the company says, because Virginia has admitted that it enacted its law with the (impermissible) purpose of pro- —————— standards required. But here, by contrast, no one sug- gests that Virginia’s mining law requires anyone to disregard NRC regulations. Cite as: 587 U. S. (2019) 13 Opinion of GORSUCH, J. tecting the public from nuclear safety hazards. But the Commonwealth denies making any such admission. In- stead, it says it has merely accepted as true the allega- tions in the company’s complaint about the intentions animating state law for purposes of the Commonwealth’s own motion to dismiss this suit under Federal Rule of Civil Procedure 12(b)(6). If the case were to proceed be- yond the pleadings stage, Virginia insists, a more search- ing judicial inquiry into the law’s motivation would be inevitable. Whoever may be right about the status of Virginia’s admissions in this case, though, the point re- mains that following Virginia Uranium’s lead would re- quire serious intrusions into state legislative processes in future cases. Beyond these concerns, as well, lie well-known concep- tual and practical ones this Court has also advised against inviting unnecessarily. State legislatures are composed of individuals who often pursue legislation for multiple and unexpressed purposes, so what legal rules should deter- mine when and how to ascribe a particular intention to a particular legislator? What if an impermissible intention existed but wasn’t necessary to her vote? And what per- centage of the legislature must harbor the impermissible intention before we can impute it to the collective institu- tion? Putting all that aside, how are courts supposed to conduct a reasonable inquiry into these questions when recorded state legislative history materials are often not as readily available or complete as their federal counter- parts? And if trying to peer inside legislators’ skulls is too fraught an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text where we began? Even Pacific warned future courts against too hastily accepting a litigant’s invitation to “become embroiled in attempting to ascertain” state legis- lative “motive[s],” acknowledging that such inquiries “often” prove “unsatisfactory venture[s]. What motivates 14 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” (citation omitted). See also Shady Grove, 559 U.S., at 403–404, n. 6; ; Edwards v. (Scalia, J., dis- senting). Cf. We think these warnings wise, and we heed them today. C If the AEA doesn’t occupy the field of radiation safety in uranium mining, Virginia Uranium suggests the statute still displaces state law through what’s sometimes called conflict preemption. In particular, the company suggests, Virginia’s mining law stands as an impermissible “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, On Virginia Uranium’s account, Congress sought to capture the benefits of developing nuclear power while mitigating its safety and environmental costs. And, the company contends, Virginia’s moratorium disrupts the delicate “balance” Congress sought to achieve between these benefits and costs. Maybe the text of the AEA doesn’t touch on mining in so many words, but its authority to regulate later stages of the nuclear fuel life cycle would be effectively undermined if mining laws like Virginia’s were allowed. A sound preemption analysis cannot be as simplistic as that. No more than in field preemption can the Supremacy Clause be deployed here to elevate abstract and unenacted legislative desires above state law; only federal laws “made in pursuance of ” the Constitution, through its prescribed processes of bicameralism and presentment, are entitled to preemptive effect. Art. VI, cl. 2; ISLA 485 U.S., at So any “[e]vidence of Cite as: 587 U. S. (2019) 15 Opinion of GORSUCH, J. pre-emptive purpose,” whether express or implied, must therefore be “sought in the text and structure of the statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Sound and well-documented reasons underlie this rule too. Efforts to ascribe unenacted purposes and objectives to a federal statute face many of the same challenges as inquiries into state legislative intent. Trying to discern what motivates legislators individually and collectively invites speculation and risks overlooking the reality that individual Members of Congress often pursue multiple and competing purposes, many of which are compromised to secure a law’s passage and few of which are fully realized in the final product. Hefty inferences may be required, as well, when trying to estimate whether Congress would have wanted to prohibit States from pursuing regulations that may happen to touch, in various degrees and different ways, on unenacted federal purposes and objectives. Worse yet, in piling inference upon inference about hidden legislative wishes we risk displacing the legislative compromises actually reflected in the statutory text— compromises that sometimes may seem irrational to an outsider coming to the statute cold, but whose genius lies in having won the broad support our Constitution demands of any new law. In disregarding these legislative compromises, we may only wind up displacing perfectly legitimate state laws on the strength of “purposes” that only we can see, that may seem perfectly logical to us, but that lack the democratic provenance the Constitution demands before a federal law may be declared supreme. See, e.g., Pacific (acknowledging that under the AEA “the promotion of nuclear power is not to be accomplished ‘at all costs’ ”); Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U. S. – (2018) (slip op., at 14–15); 482 U.S., at (Scalia, J., dissenting); United States v. O’Brien, 391 U.S. 16 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. 3, 382–384 (1968); (1810). So it may be that Congress meant the AEA to promote the development of nuclear power. It may be that Congress meant the AEA to balance that goal against various safety concerns. But it also may be that Members of Congress held many other disparate or conflicting goals in mind when they voted to enact and amend the AEA, and many different views on exactly how to manage the competing costs and benefits. If polled, they might have reached very different assessments, as well, about the consistency of Virginia’s law with their own purposes and objectives. The only thing a court can be sure of is what can be found in the law itself. And every indication in the law before us suggests that Congress elected to leave mining regulation on private land to the States and grant the NRC regulatory authority only after uranium is removed from the earth. That compromise may not be the only permissible or even the most rationally attractive one, but it is surely both permissible and rational to think that Congress might have chosen to regulate the more novel aspects of nuclear power while leaving to States their traditional function of regulating mining activities on private lands within their boundaries.4 As an alternative to proceeding down the purposes-and- objectives branch of conflict preemption, Virginia Uranium might have pursued another. Our cases have held that we —————— 4 The concurrence takes a slightly different tack. It seems to accept the premise that the Court can divine the unenacted “purposes” and “objectives” underlying the AEA and weigh them against Virginia’s mining law. But in rejecting Virginia Uranium’s argument, it winds up emphasizing repeatedly that the text of the AEA does not address mining. See post, at 12–14. That may not fully address Virginia Uranium’s assertion that state mining regulations interfere with a latent statutory purpose lying beyond the text, but it does highlight the propriety of confining our inquiries to the statute’s terms. Cite as: 587 U. S. (2019) 17 Opinion of GORSUCH, J. can sometimes infer a congressional intent to displace a state law that makes compliance with a federal statute impossible. 496 U.S., at But Virginia Uranium hasn’t pursued an argument along any of these lines, and understandably so. Not only can Virginia Uranium comply with both state and federal laws; it is also unclear whether laws like Virginia’s might have a meaningful impact on the development of nuclear power in this country. Some estimate that the United States currently imports over 90 percent of the uranium used in this country. App. to Pet. for Cert. 19a. Domestic uranium mines currently exist on federal lands as well and are thus beyond the reach of state authorities. And if the federal government concludes that development of the Coles Hill deposit or any other like it is crucial, it may always purchase the site (or seize it through eminent domain) under the powers Congress has supplied. 42 U.S. C. All this may be done without even amending the AEA, itself another course which Congress is always free to pursue—but which this Court should never be tempted into pursuing on its own. * The judgment of the court of appeals is Affirmed. Cite as: 587 U. S. (2019) 1 GINSBURG GINSBURG J., concurring J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 16–1275 VIRGINIA URANIUM, INC., ET AL., PETITIONERS v. JOHN WARREN, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 17, 2019] JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, concurring in the judgment.

Justice Stevens

dissenting

Engquist v. Oregon Dept. of Agriculture

https://www.courtlistener.com/opinion/145801/engquist-v-oregon-dept-of-agriculture/

https://www.courtlistener.com/api/rest/v3/clusters/145801/

2007-047

Congress has provided a judicial remedy for individuals whose federal constitutional rights are violated by state action, 42 U.S.C. § 1983.[1] In prior cases, we have refused to craft new remedies for the violation of constitutional rights of federal employees, Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983), or for the nonconstitutional claims of state employees, Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). But refusal to give effect to the congressionally mandated remedy embodied in § 1983 would be impermissible. To avoid this result, the Court today concludes that Engquist suffered no constitutional violation at all, and that there was thus no harm to be remedied. In so holding, the Court—as it did in Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006)—carves a novel exception out of state employees' constitutional rights. In Garcetti, the Court created a new substantive rule excepting a category of speech by *2158 state employees from the protection of the First Amendment. Today, the Court creates a new substantive rule excepting state employees from the Fourteenth Amendment's protection against unequal and irrational treatment at the hands of the State. Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection "class of one" claims, the Court should use a scalpel rather than a meat-axe. I Our decision in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (per curiam), applied a rule that had been an accepted part of our equal protection jurisprudence for decades: Unless state action that intentionally singles out an individual, or a class of individuals, for adverse treatment is supported by some rational justification, it violates the Fourteenth Amendment's command that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Our opinion in Olech emphasized that the legal issue would have been the same whether the class consisted of one or five members, because "the number of individuals in a class is immaterial for equal protection analysis." Id., at 564, 120 S. Ct. 1073, n. The outcome of that case was not determined by the size of the disadvantaged class, and the majority does not— indeed cannot—dispute the settled principle that the Equal Protection Clause protects persons, not groups. See ante, at 2150-2151. Nor did the outcome in Olech turn on the fact that the Village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, at 2151. And indeed, we have made clear that "the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and § 1983 provides a cause of action for all citizens injured by an abridgment of those protections." Collins v. Harker Heights, 503 U.S. 115, 119-120, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). Rather, the outcome of Olech was dictated solely by the absence of a rational basis for the discrimination. As we explained: "Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. In so doing, we have explained that `[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.' "[Olech's] complaint also alleged that the Village's demand was `irrational and wholly arbitrary' . . . . These allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis." 528 U.S., at 564, 565, 120 S. Ct. 1073 (some internal quotation marks and citations omitted). Here, as in Olech, Engquist alleged that the State's actions were arbitrary and irrational. In response, the State offered no explanation whatsoever for its decisions; it did not claim that Engquist was a subpar worker, or even that her personality made *2159 her a poor fit in the workplace or that her colleagues simply did not enjoy working with her. In fact, the State explicitly disclaimed the existence of any workplace or performance-based rationale.[2] See, e.g., Reply Brief for Petitioner 17, 19. The jury proceeded to find that the respondents intentionally treated Engquist "differently than others similarly situated with respect to the . . . termination of her employment. . . without any rational basis and solely for arbitrary, vindictive or malicious reasons." App. to Pet. for Cert. 3-4. The jury's verdict thus established that there was no rational basis for either treating Engquist differently from other employees or for the termination of her employment. The State does not dispute this finding. Under our reasoning in Olech, the absence of any justification for the discrimination sufficed to establish the constitutional violation. The majority nonetheless concludes, based on "unique considerations applicable when the government acts as employer," that the "class of one" theory of equal protection is not applicable in the public employment context. Ante, at 2151. Its conclusion is based upon speculation about inapt hypothetical cases, and an incorrect evaluation of the importance of the government's interest in preserving a regime of "at will" employment. Its reasoning is flawed on both counts. II The majority asserts that public-employment decisions should be carved out of our equal protection jurisprudence because employment decisions (as opposed to, for example, zoning decisions) are inherently discretionary. I agree that employers must be free to exercise discretionary authority. But there is a clear distinction between an exercise of discretion and an arbitrary decision. A discretionary decision represents a choice of one among two or more rational alternatives. See 1 H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 162 (Tent. ed.1958) (defining discretion as "the power to choose between two or more courses of action each of which is thought of as permissible"). The choice may be mistaken or unwise without being irrational. If the arguments favoring each alternative are closely balanced, the need to make a choice may justify using a coin toss as a tie breaker. Moreover, the Equal Protection Clause proscribes arbitrary decisions—decisions unsupported by any rational basis—not unwise ones. Accordingly, a discretionary decision with any "reasonably conceivable" rational justification will not support an equal protection claim; only a truly arbitrary one will. There is therefore no need to create an exception for the public-employment context in order to prevent these discretionary decisions from giving rise equal protection claims. The hypothetical situations posited by the majority do not prove otherwise. The hypothetical traffic officer described in the Court's opinion, ante, at 2154, had a rational basis for giving a ticket to every speeder passing him on the highway. His inability to arrest every driver in sight provides an adequate justification for making a random choice from a group of equally guilty and equally accessible violators. As such, the Court is quite correct in stating that "allowing an equal protection claim on the *2160 ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action." Ibid. If there were no justification for the arrest, there would be no need to invoke the Equal Protection Clause because the officer's conduct would violate the Fourth Amendment. But as noted, a random choice among rational alternatives does not violate the Equal Protection Clause. A comparable hypothetical decision in the employment context (e.g., a supervisor who is required to eliminate one position due to an involuntary reduction-in-force and who chooses to terminate one of several equally culpable employees) also differs from the instant case insofar as it assumes the existence of a rational basis for the individual decision. The fact that a supervisor might not be able to explain why he terminated one employee rather than another will not give rise to an equal protection claim so long as there was a rational basis for the termination itself and for the decision to terminate just one, rather than all, of the culpable employees. Instead of using a scalpel to confine so-called "class of one" claims to cases involving a complete absence of any conceivable rational basis for the adverse action and the differential treatment of the plaintiff, the Court adopts an unnecessarily broad rule that tolerates arbitrary and irrational decisions in the employment context. III The majority's decision also rests on the premise that "[t]he Constitution does not require repudiating th[e] familiar doctrine" of at-will employment. Ante, at 2156. In the 1890's that doctrine applied broadly to government employment, see McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892), but for many years now "`the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.'" Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 605-606, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). Indeed, recent constitutional decisions and statutory enactments have all but nullified the significance of the doctrine. See, e.g., Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990); see also 5 U.S.C. § 2302(b)(10) (2006 ed.) (supervisor of covered federal employee may not "discriminate . . . on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others"). Accordingly, preserving the remnants of "at-will" employment provides a feeble justification for creating a broad exception to a well-established category of constitutional protections.[3] IV Presumably the concern that actually motivates today's decision is fear that governments will be forced to defend against a multitude of "class of one" claims unless the Court wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently,[4]*2161 that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus. When the allegations of a complaint plainly identify "the proverbial needle in a haystack," ante, at 2157, a federal court should not misconstrue the Constitution in order to make it even easier to dismiss unmeritorious claims. * * * In sum, there is no compelling reason to carve arbitrary public-employment decisions out of the well-established category of equal protection violations when the familiar rational review standard can sufficiently limit these claims to only wholly unjustified employment actions. Accordingly, I respectfully dissent.

Congress has provided a judicial remedy for individuals whose federal constitutional rights are violated by state action,[1] In prior cases, we have refused to craft new remedies for the violation of constitutional rights of federal employees, or for the nonconstitutional claims of state employees, But refusal to give effect to the congressionally mandated remedy embodied in would be impermissible. To avoid this result, the Court today concludes that Engquist suffered no constitutional violation at all, and that there was thus no harm to be remedied. In so holding, the Court—as it did in —carves a novel exception out of state employees' constitutional rights. In Garcetti, the Court created a new substantive rule excepting a category of speech by *2158 state employees from the protection of the First Amendment. Today, the Court creates a new substantive rule excepting state employees from the Fourteenth Amendment's protection against unequal and irrational treatment at the hands of the State. Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection "class of one" claims, the Court should use a scalpel rather than a meat-axe. I Our decision in Village of applied a rule that had been an accepted part of our equal protection jurisprudence for decades: Unless state action that intentionally singles out an individual, or a class of individuals, for adverse treatment is supported by some rational justification, it violates the Fourteenth Amendment's command that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Our opinion in Olech emphasized that the legal issue would have been the same whether the class consisted of one or five members, because "the number of individuals in a class is immaterial for equal protection analysis." n. The outcome of that case was not determined by the size of the disadvantaged class, and the majority does not— indeed cannot—dispute the settled principle that the Equal Protection Clause protects persons, not groups. See ante, at 2150-2151. Nor did the outcome in Olech turn on the fact that the Village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, at 2151. And indeed, we have made clear that "the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and provides a cause of action for all citizens injured by an abridgment of those protections." Rather, the outcome of Olech was dictated solely by the absence of a rational basis for the discrimination. As we explained: "Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. In so doing, we have explained that `[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.' "[Olech's] complaint also alleged that the Village's demand was `irrational and wholly arbitrary' These allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis." 528 U.S., 565, (some internal quotation marks and citations omitted). Here, as in Olech, Engquist alleged that the State's actions were arbitrary and irrational. In response, the State offered no explanation whatsoever for its decisions; it did not claim that Engquist was a subpar worker, or even that her personality made *2159 her a poor fit in the workplace or that her colleagues simply did not enjoy working with her. In fact, the State explicitly disclaimed the existence of any workplace or performance-based rationale.[2] See, e.g., Reply Brief for Petitioner 17, 19. The jury proceeded to find that the respondents intentionally treated Engquist "differently than others similarly situated with respect to the termination of her employment. without any rational basis and solely for arbitrary, vindictive or malicious reasons." App. to Pet. for Cert. 3-4. The jury's verdict thus established that there was no rational basis for either treating Engquist differently from other employees or for the termination of her employment. The State does not dispute this finding. Under our reasoning in Olech, the absence of any justification for the discrimination sufficed to establish the constitutional violation. The majority nonetheless concludes, based on "unique considerations applicable when the government acts as employer," that the "class of one" theory of equal protection is not applicable in the public employment context. Ante, at 2151. Its conclusion is based upon speculation about inapt hypothetical cases, and an incorrect evaluation of the importance of the government's interest in preserving a regime of "at will" employment. Its reasoning is flawed on both counts. II The majority asserts that public-employment decisions should be carved out of our equal protection jurisprudence because employment decisions (as opposed to, for example, zoning decisions) are inherently discretionary. I agree that employers must be free to exercise discretionary authority. But there is a clear distinction between an exercise of discretion and an arbitrary decision. A discretionary decision represents a choice of one among two or more rational alternatives. See 1 H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 162 (Tent. ed.1958) (defining discretion as "the power to choose between two or more courses of action each of which is thought of as permissible"). The choice may be mistaken or unwise without being irrational. If the arguments favoring each alternative are closely balanced, the need to make a choice may justify using a coin toss as a tie breaker. Moreover, the Equal Protection Clause proscribes arbitrary decisions—decisions unsupported by any rational basis—not unwise ones. Accordingly, a discretionary decision with any "reasonably conceivable" rational justification will not support an equal protection claim; only a truly arbitrary one will. There is therefore no need to create an exception for the public-employment context in order to prevent these discretionary decisions from giving rise equal protection claims. The hypothetical situations posited by the majority do not prove otherwise. The hypothetical traffic officer described in the Court's opinion, ante, at 2154, had a rational basis for giving a ticket to every speeder passing him on the highway. His inability to arrest every driver in sight provides an adequate justification for making a random choice from a group of equally guilty and equally accessible violators. As such, the Court is quite correct in stating that "allowing an equal protection claim on the *2160 ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action." If there were no justification for the arrest, there would be no need to invoke the Equal Protection Clause because the officer's conduct would violate the Fourth Amendment. But as noted, a random choice among rational alternatives does not violate the Equal Protection Clause. A comparable hypothetical decision in the employment context (e.g., a supervisor who is required to eliminate one position due to an involuntary reduction-in-force and who chooses to terminate one of several equally culpable employees) also differs from the instant case insofar as it assumes the existence of a rational basis for the individual decision. The fact that a supervisor might not be able to explain why he terminated one employee rather than another will not give rise to an equal protection claim so long as there was a rational basis for the termination itself and for the decision to terminate just one, rather than all, of the culpable employees. Instead of using a scalpel to confine so-called "class of one" claims to cases involving a complete absence of any conceivable rational basis for the adverse action and the differential treatment of the plaintiff, the Court adopts an unnecessarily broad rule that tolerates arbitrary and irrational decisions in the employment context. III The majority's decision also rests on the premise that "[t]he Constitution does not require repudiating th[e] familiar doctrine" of at-will employment. Ante, at 2156. In the 1890's that doctrine applied broadly to government employment, see but for many years now "`the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.'" Indeed, recent constitutional decisions and statutory enactments have all but nullified the significance of the doctrine. See, e.g., ; ; see also 5 U.S.C. 2302(b)(10) ( ed.) (supervisor of covered federal employee may not "discriminate on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others"). Accordingly, preserving the remnants of "at-will" employment provides a feeble justification for creating a broad exception to a well-established category of constitutional protections.[3] IV Presumably the concern that actually motivates today's decision is fear that governments will be forced to defend against a multitude of "class of one" claims unless the Court wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently,[4]*2161 that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus. When the allegations of a complaint plainly identify "the proverbial needle in a haystack," ante, at 2157, a federal court should not misconstrue the Constitution in order to make it even easier to dismiss unmeritorious claims. * * * In sum, there is no compelling reason to carve arbitrary public-employment decisions out of the well-established category of equal protection violations when the familiar rational review standard can sufficiently limit these claims to only wholly unjustified employment actions. Accordingly, I respectfully dissent.

Justice Rehnquist

majority

Washington v. Glucksberg

https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/

https://www.courtlistener.com/api/rest/v3/clusters/118144/

1996-091

The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide *706 offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington's first Territorial Legislature *707 outlawed "assisting another in the commission of self-murder."[1] Today, Washington law provides: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." Wash. Rev. Code § 9A.36.060(1) (1994). "Promoting a suicide attempt" is a felony, punishable by up to five years' imprisonment and up to a $10,000 fine. §§ 9A.36.060(2) and 9A.20.021(1)(c). At the same time, Washington's Natural Death Act, enacted in 1979, states that the "withholding or withdrawal of life-sustaining treatment" at a patient's direction "shall not, for any purpose, constitute a suicide." Wash. Rev. Code § 70.122.070(1).[2] Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted-suicide ban.[3] In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and *708 Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide, sued in the United States District Court, seeking a declaration that Wash. Rev. Code § 9A.36.060(1) (1994) is, on its face, unconstitutional. Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459 (WD Wash. 1994).[4] The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide." Ibid. Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), and Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990), the District Court agreed, 850 F. Supp., at 1459-1462, and concluded that Washington's assisted-suicide ban is unconstitutional because it "places an undue burden on the exercise of [that] constitutionally protected liberty interest." Id., at 1465.[5] The District Court also decided that the Washington statute violated the Equal Protection Clause's requirement that "`all persons similarly situated . . . be treated alike.' " Id., at 1466 (quoting Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985)). A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that "[i]n the two hundred and five years of our existence no constitutional right to aid in killing *709 oneself has ever been asserted and upheld by a court of final jurisdiction." Compassion in Dying v. Washington, 49 F.3d 586, 591 (1995). The Ninth Circuit reheard the case en banc, reversed the panel's decision, and affirmed the District Court. Compassion in Dying v. Washington, 79 F.3d 790, 798 (1996). Like the District Court, the en banc Court of Appeals emphasized our Casey and Cruzan decisions. 79 F.3d, at 813-816. The court also discussed what it described as "historical" and "current societal attitudes" toward suicide and assisted suicide, id., at 806-812, and concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death—that there is, in short, a constitutionally-recognized `right to die.' " Id., at 816. After "[w]eighing and then balancing" this interest against Washington's various interests, the court held that the State's assisted-suicide ban was unconstitutional "as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians." Id., at 836, 837.[6] The court did not reach the District Court's equal protection holding. Id., at 838.[7] We granted certiorari, 518 U.S. 1057 (1996), and now reverse. *710 I We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e. g., Casey, supra, at 849-850; Cruzan, supra, at 269-279; Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (noting importance of "careful `respect for the teachings of history' "). In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide.[8] The States' assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. Cruzan, supra, at 280 ("[T]he States—indeed, all civilized nations—demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority *711 of States in this country have laws imposing criminal penalties on one who assists another to commit suicide"); see Stanford v. Kentucky, 492 U.S. 361, 373 (1989) ("[T]he primary and most reliable indication of [a national] consensus is. . . the pattern of enacted laws"). Indeed, opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages. See generally Marzen 17-56; New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 77-82 (May 1994) (hereinafter New York Task Force). More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.[9]Cruzan, 497 U. S., at 294-295 (Scalia, J., concurring). In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that "[j]ust as a man may commit felony by slaying another so may he do so by slaying himself." 2 Bracton on Laws and Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968). The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to the King; however, thought Bracton, "if a man slays himself in weariness of life or because he is unwilling to endure further bodily pain . . . [only] his movable goods [were] confiscated." Id., at 423-424 (f. 150). Thus, "[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was . . . introduced into *712 English common law."[10] Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th- and 19th-century American lawyers, referred to suicide as "self-murder" and "the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure . . . ." 4 W. Blackstone, Commentaries *189. Blackstone emphasized that "the law has . . . ranked [suicide] among the highest crimes," ibid., although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity." Id., at *190. For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 1647, that "[s]elf-murder is by all agreed to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out *713 of a premeditated hatred against his own life or other humor:. . . his goods and chattels are the king's custom, but not his debts nor lands; but in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing." The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 19 (J. Cushing ed. 1977). Virginia also required ignominious burial for suicides, and their estates were forfeit to the Crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and n. 15 (1930). Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example. Cruzan, supra, at 294 (Scalia, J., concurring). Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796: "There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender. . . . [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment." 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796). This statement makes it clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide's family for his wrongdoing. Cruzan, supra, at 294 (Scalia, J., concurring). Nonetheless, *714 although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong. See, e. g., Bigelow v. Berkshire Life Ins. Co., 93 U.S. 284, 286 (1876) (suicide is "an act of criminal selfdestruction"); Von Holden v. Chapman, 87 A.D. 2d 66, 70-71, 450 N. Y. S. 2d 623, 626-627 (1982); Blackwood v. Jones, 111 Fla. 528, 532, 149 So. 600, 601 (1933) ("No sophistry is tolerated . . . which seek[s] to justify self-destruction as commendable or even a matter of personal right"). That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal." 2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823). This was the well-established common-law view, see In re Joseph G., 34 Cal. 3d 429, 434-435, 667 P.2d 1176, 1179 (1983); Commonwealth v. Mink, 123 Mass. 422, 428 (1877) ("`Now if the murder of one's self is felony, the accessory is equally guilty as if he had aided and abetted in the murder' ") (quoting Chief Justice Parker's charge to the jury in Commonwealth v. Bowen, 13 Mass. 356 (1816)), as was the similar principle that the consent of a homicide victim is "wholly immaterial to the guilt of the person who cause[d] [his death]," 3 J. Stephen, A History of the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law §§ 451-452 (9th ed. 1885); Martin v. Commonwealth, 184 Va. 1009, 1018— 1019, 37 S.E.2d 43, 47 (1946) ("`The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable' "). And the prohibitions against assisting suicide never contained exceptions for those who were near death. Rather, "[t]he life of those to whom life ha[d] become a burden—of those who [were] hopelessly diseased or fatally wounded—nay, even the lives of criminals *715 condemned to death, [were] under the protection of the law, equally as the lives of those who [were] in the full tide of life's enjoyment, and anxious to continue to live." Blackburn v. State, 23 Ohio St. 146, 163 (1872); see Bowen, supra, at 360 (prisoner who persuaded another to commit suicide could be tried for murder, even though victim was scheduled shortly to be executed). The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, § 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, § 7, p. 661 (1829)), and many of the new States and Territories followed New York's example. Marzen 73-74. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited "aiding" a suicide and, specifically, "furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life." Id., at 76-77. By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. See Cruzan, 497 U. S., at 294-295 (Scalia, J., concurring). The Field Penal Code was adopted in the Dakota Territory in 1877 and in New York in 1881, and its language served as a model for several other western States' statutes in the late 19th and early 20th centuries. Marzen 76-77, 205-206, 212-213. California, for example, codified its assisted-suicide prohibition in 1874, using language similar to the Field Code's.[11] In this century, the Model Penal Code also prohibited "aiding" suicide, prompting many States to enact or revise their assisted-suicide *716 bans.[12] The code's drafters observed that "the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim." American Law Institute, Model Penal Code § 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980). Though deeply rooted, the States' assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16-18 (1983). Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life,with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit "living wills," surrogate health-care decisionmaking, and the withdrawal or refusal of life-sustaining medical treatment. See Vacco v. Quill, post, at 804-806; 79 F.3d, at 818-820; People v. Kevorkian, 447 Mich. 436, 478-480, and nn. 53-56, 527 N.W.2d 714, 731-732, and nn. 53-56 (1994). At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting suicide. The Washington statute at issue in this case, Wash. Rev. Code § 9A.36.060 (1994), was enacted in 1975 as part of a revision of that State's criminal code. Four years later, *717 Washington passed its Natural Death Act, which specifically stated that the "withholding or withdrawal of life-sustaining treatment . . . shall not, for any purpose, constitute a suicide" and that "[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing . . . ." Natural Death Act, 1979 Wash. Laws, ch. 112, § 8(1), p. 11 (codified at Wash. Rev. Code §§ 70.122.070(1), 70.122.100 (1994)). In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physicianassisted suicide.[13] Washington then added a provision to the Natural Death Act expressly excluding physician-assisted suicide. 1992 Wash. Laws, ch. 98, § 10; Wash. Rev. Code § 70.122.100 (1994). California voters rejected an assisted-suicide initiative similar to Washington's in 1993. On the other hand, in 1994, voters in Oregon enacted, also through ballot initiative, that State's "Death With Dignity Act," which legalized physician-assisted suicide for competent, terminally ill adults.[14] Since the Oregon vote, many proposals to legalize assisted-suicide have been and continue to be introduced in the States' legislatures, but none has been enacted.[15] And *718 just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. See Iowa Code Ann. §§ 707A.2, 707A.3 (Supp. 1997); R. I. Gen. Laws §§ 11-60-1, 11-60-3 (Supp. 1996). Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide. Pub. L. 105-12, 111 Stat. 23 (codified at 42 U.S. C. § 14401 et seq. ).[16] *719 Thus, the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues. For example, New York State's Task Force on Life and the Law—an ongoing, blue-ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen—was convened in 1984 and commissioned with "a broad mandate to recommend public policy on issues raised by medical advances." New York Task Force vii. Over the past decade, the Task Force has recommended laws relating to end-of-life decisions, surrogate pregnancy, and organ donation. Id., at 118-119. After studying physician-assisted suicide, however, the Task Force unanimously concluded that "[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. . . . [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved." Id., at 120. Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents' constitutional claim. II The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them' ") (quoting *720 Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301-302 (1993); Casey, 505 U. S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid.; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment. Cruzan, 497 U. S., at 278-279. But we "ha[ve] always been reluctant to expand the concept of substantive due process because guide posts for responsible decision making in this unchartered area are scarce and open-ended." Collins, 503 U. S., at 125. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ibid., lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore, 431 U. S., at 502 (plurality opinion). Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. Flores, supra, at 302; Collins, supra, at 125; Cruzan, supra, at 277— 278. Our Nation's history, legal traditions, and practices thus provide the crucial "guide posts for responsible decisionmaking," Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment "forbids the government to infringe . . . `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." 507 U.S., at 302. Justice Souter, relying on Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U.S. 497 (1961), would largely abandon this restrained methodology, and instead ask "whether [Washington's] statute sets up one of those `arbitrary impositions' or `purposeless restraints' at odds with the Due Process Clause of the Fourteenth Amendment," post, at 752 (quoting Poe, supra, at 543 (Harlan, J., dissenting)).[17]*722 In our view, however, the development of this Court's substantive-due-process jurisprudence, described briefly supra, at 719-720, has been a process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not capable of being fully clarified—have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirement—that a challenged state action implicate a fundamental right—before requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case. Turning to the claim at issue here, the Court of Appeals stated that "[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one's death," 79 F.3d, at 801, or, in other words, "[i]s there a right to die?," id., at 799. Similarly, respondents assert a "liberty to choose how to die" and a right to "control of one's final days," Brief for Respondents 7, and describe the asserted liberty as "the right to choose a humane, dignified death," id., at 15, and "the liberty to shape death," id., at 18. As noted above, we have a tradition of carefully formulating the interest at stake in substantivedue-process cases. For example, although Cruzan is often described as a "right to die" case, see 79 F.3d, at 799; post, at 745 (Stevens, J., concurring in judgments) (Cruzan recognized "the more specific interest in making decisions about *723 how to confront an imminent death"), we were, in fact, more precise: We assumed that the Constitution granted competent persons a "constitutionally protected right to refuse lifesaving hydration and nutrition." Cruzan, 497 U. S., at 279; id., at 287 (O'Connor, J., concurring) ("[A] liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions"). The Washington statute at issue in this case prohibits "aid[ing] another person to attempt suicide," Wash. Rev. Code § 9A.36.060(1) (1994), and, thus, the question before us is whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.[18] We now inquire whether this asserted right has any place in our Nation's traditions. Here, as discussed supra, at 710— 719, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. See Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922) ("If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it"); Flores, 507 U. S., at 303 ("The mere novelty of such a claim is reason enough to doubt that `substantive due process' sustains it"). Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive-dueprocess *724 line of cases, if not with this Nation's history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of "self-sovereignty," Brief for Respondents 12, and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy," id., at 10; see Casey, 505 U. S., at 847 ("It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter"). According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference." Brief for Respondents 10. The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another's assistance. With this "careful description" of respondents' claim in mind, we turn to Casey and Cruzan. In Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in a persistive vegetative state, "ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment" at her parents' request. 497 U.S., at 269. We began with the observation that "[a]t common law, even the touching of one person by another without consent and without legal justification was a battery." Ibid. We then discussed the related rule that "informed consent is generally required for medical treatment." Ibid. After reviewing a long line of relevant state cases, we concluded that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Id., at 277. Next, we reviewed our own cases on the subject, and stated that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior *725 decisions." Id., at 278. Therefore, "for purposes of [that] case, we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse life saving hydration and nutrition." Id., at 279; see id., at 287 (O'Connor, J., concurring). We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient's wishes concerning the withdrawal of life-sustaining treatment. Id., at 280-281. Respondents contend that in Cruzan we "acknowledged that competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death," Brief for Respondents 23, and that "the constitutional principle behind recognizing the patient's liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication," id., at 26. Similarly, the Court of Appeals concluded that "Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one's own death." 79 F.3d, at 816. The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Quill v. Vacco, post, at 800-808. In Cruzan itself, we recognized that most States outlawed assisted suicide—and even more do today—and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow *726 transmuted into a right to assistance in committing suicide. 497 U.S., at 280. Respondents also rely on Casey. There, the Court's opinion concluded that "the essential holding of Roe v. Wade [, 410 U.S. 113 (1973),] should be retained and once again reaffirmed." 505 U.S., at 846. We held, first, that a woman has a right, before her fetus is viable, to an abortion "without undue interference from the State"; second, that States may restrict postviability abortions, so long as exceptions are made to protect a woman's life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. Ibid. In reaching this conclusion, the opinion discussed in some detail this Court's substantive-due-process tradition of interpreting the Due Process Clause to protect certain fundamental rights and "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and noted that many of those rights and liberties "involv[e] the most intimate and personal choices a person may make in a lifetime." Id., at 851. The Court of Appeals, like the District Court, found Casey "`highly instructive' " and "`almost prescriptive' " for determining "`what liberty interest may inhere in a terminally ill person's choice to commit suicide' ": "Like the decision of whether or not to have an abortion, the decision how and when to die is one of `the most intimate and personal choices a person may make in a lifetime,' a choice `central to personal dignity and autonomy.' " 79 F.3d, at 813-814. Similarly, respondents emphasize the statement in Casey that: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they *727 formed under compulsion of the State." 505 U.S., at 851. Brief for Respondents 12. By choosing this language, the Court's opinion in Casey described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.[19] The opinion moved from the recognition that liberty necessarily includes freedom of conscience and belief about ultimate considerations to the observation that "though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. " Casey, 505 U. S., at 852 (emphasis added). That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San An- *728 tonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33-35 (1973), and Casey did not suggest otherwise. The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington's assistedsuicide ban be rationally related to legitimate government interests. See Heller v. Doe, 509 U.S. 312, 319-320 (1993); Flores, 507 U. S., at 305. This requirement is unquestionably met here. As the court below recognized, 79 F.3d, at 816-817,[20] Washington's assisted-suicide ban implicates a number of state interests.[21] See 49 F.3d, at 592-593; Brief for State of California et al.as Amici Curiae 26-29; Brief for United States as Amicus Curiae 16-27. First, Washington has an "unqualified interest in the preservation of human life." Cruzan, 497 U. S., at 282. The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. See id., at 280; Model Penal Code § 210.5, Comment 5, at 100 ("[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of *729 another").[22] This interest is symbolic and as pirational as well as practical: "While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these decisions." New York Task Force 131-132. Respondents admit that "[t]he State has a real interest in preserving the lives of those who can still contribute to society and have the potential to enjoy life." Brief for Respondents 35, n. 23. The Court of Appeals also recognized Washington's interest in protecting life, but held that the "weight" of this interest depends on the "medical condition and the wishes of the person whose life is at stake." 79 F.3d, at 817. Washington, however, has rejected this sliding-scale approach and, through its assisted-suicide ban, insists that all persons' lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law. See United States v. Rutherford, 442 U.S. 544, 558 (1979) (". . . Congress could reasonably have determined to protect the terminally ill, no less than other patients, from the vast range of self-styled panaceas that inventive minds can devise"). As we have previously affirmed, the States "may properly decline to make judgments about the `quality' of life that a particular individual may enjoy," Cruzan, *730 supra, at 282. This remains true, as Cruzan makes clear, even for those who are near death. Relatedly, all admit that suicide is a serious public-health problem, especially among persons in otherwise vulnerable groups. See Washington State Dept. of Health, Annual Summary of Vital Statistics 1991, pp. 29-30 (Oct. 1992) (suicide is a leading cause of death in Washington of those between the ages of 14 and 54); New York Task Force 10, 23-33 (suicide rate in the general population is about one percent, and suicide is especially prevalent among the young and the elderly). The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. See 79 F.3d, at 820; id., at 854 (Beezer, J., dissenting) ("The state recognizes suicide as a manifestation of medical and psychological anguish"); Marzen 107-146. Those who attempt suicide—terminally ill or not—often suffer from depression or other mental disorders. See New York Task Force 13-22, 126-128 (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a "risk factor" because it contributes to depression); PhysicianAssisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 10-11 (Comm. Print 1996); cf. Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide and Euthanasia in Washington State, 275 JAMA 919, 924 (1996) ("[I]ntolerable physical symptoms are not the reason most patients request physician-assisted suicide or euthanasia"). Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated. H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure 24-25 (1997) (suicidal, terminally ill patients "usually respond well to treatment for depressive illness and pain medication and are then grateful to be alive"); New York Task Force 177-178. *731 The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients' needs. Id., at 175. Thus, legal physician-assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses. The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals' conclusion that "the integrity of the medical profession would [not] be threatened in any way by [physician-assisted suicide]," 79 F.3d, at 827, the American Medical Association, like many other medical and physicians' groups, has concluded that "[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as healer." American Medical Association, Code of Ethics § 2.211 (1994); see Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2233 (1992) ("[T]he societal risks of involving physicians in medical interventions to cause patients' deaths is too great"); New York Task Force 103-109 (discussing physicians' views). And physician-assisted suicide could, it is argued, undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming. Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 355-356 (1996) (testimony of Dr. Leon R. Kass) ("The patient's trust in the doctor's whole-hearted devotion to his best interests will be hard to sustain"). Next, the State has an interest in protecting vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes. The Court of Appeals dismissed the State's concern that disadvantaged persons might be pressured into physician-assisted suicide as *732 "ludicrous on its face." 79 F.3d, at 825. We have recognized, however, the real risk of subtle coercion and undue influence in end-of-life situations. Cruzan, 497 U. S., at 281. Similarly, the New York Task Force warned that "[l]egalizing physician-assisted suicide would pose profound risks to many individuals who are ill and vulnerable. . . . The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group." New York Task Force 120; see Compassion in Dying, 49 F. 3d, at 593 ("An insidious bias against the handicapped—again coupled with a cost-saving mentality—makes them especially in need of Washington's statutory protection"). If physicianassisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of endof-life health-care costs. The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference." 49 F.3d, at 592. The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. See New York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady, supra, at 9, 20 (discussing prejudice toward the disabled and the negative messages euthanasia and assisted suicide send to handicapped patients). Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down *733 Washington's assisted-suicide ban only "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F.3d, at 838. Washington insists, however, that the impact of the court's decision will not and cannot be so limited. Brief for Petitioners 44-47. If suicide is protected as a matter of constitutional right, it is argued, "every man and woman in the United States must enjoy it." Compassion in Dying, 49 F. 3d, at 591; see Kevorkian, 447 Mich., at 470, n. 41, 527 N.W.2d, at 727-728, n. 41. The Court of Appeals' decision, and its expansive reasoning, provide ample support for the State's concerns. The court noted, for example, that the "decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself," 79 F.3d, at 832, n. 120; that "in some instances, the patient may be unable to self-administer the drugs and . . . administration by the physician . . . may be the only way the patient may be able to receive them," id., at 831; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide, id., at 838, n. 140. Thus, it turns out that what is couched as a limited right to "physician-assisted suicide" is likely, in effect, a much broader license, which could prove extremely difficult to police and contain.[23] Washington's ban on assisting suicide prevents such erosion. *734 This concern is further supported by evidence about the practice of euthanasia in the Netherlands. The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as "the deliberate termination of another's life at his request"), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit request. In addition to these latter 1,000 cases, the study found an additional 4,941 cases where physicians administered lethal morphine overdoses without the patients' explicit consent. Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady, supra, 12-13 (citing Dutch study). This study suggests that, despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia. Id., at 16-21; see generally C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands (1991); H. Hendin, Seduced By Death: Doctors, Patients, and the Dutch Cure (1997). The New York Task Force, citing the Dutch experience, observed that "assisted suicide and euthanasia are closely linked," New York Task Force 145, and concluded that the "risk of . . . abuse is neither speculative nor distant," id., at 134. Washington, like most *735 other States, reasonably ensures against this risk by banning, rather than regulating, assisted suicide. See United States v. 12 200-ft. Reels of Super 8MM. Film, 413 U.S. 123, 127 (1973) ("Each step, when taken, appear[s] a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance"). We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington's ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F.3d, at 838.[24] * * * Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is *736 reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide *706 offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington's first Territorial Legislature *707 outlawed "assisting another in the commission of self-murder."[1] Today, Washington law provides: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt " Wash. Rev. Code 9A.36.060(1) "Promoting a suicide attempt" is a felony, punishable by up to five years' imprisonment and up to a $10,000 fine. 9A.36.060(2) and 9A.20.021(1)(c). At the same time, Washington's Natural Death Act, enacted in 1979, states that the "withholding or withdrawal of life-sustaining treatment" at a patient's direction "shall not, for any purpose, constitute a " Wash. Rev. Code 70.122.070(1).[2] Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted-suicide ban.[3] In January respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and *708 Compassion in a nonprofit organization that counsels people considering physician-assisted suicide, sued in the United States District Court, seeking a declaration that Wash. Rev. Code 9A.36.060(1) is, on its face, unconstitutional. Compassion in[4] The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted " Relying primarily on Planned Parenthood of Southeastern and the District Court 850 F. Supp., at -1462, and concluded that Washington's assisted-suicide ban is unconstitutional because it "places an undue burden on the exercise of [that] constitutionally protected liberty interest."[5] The District Court also decided that the Washington statute violated the Equal Protection Clause's requirement that "`all persons similarly situated be treated alike.' " ). A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that "[i]n the two hundred and five years of our existence no constitutional right to aid in killing *709 oneself has ever been asserted and upheld by a court of final jurisdiction." Compassion in The Ninth Circuit reheard the case en banc, reversed the panel's decision, and affirmed the District Court. Compassion in Like the District Court, the en banc Court of Appeals emphasized our and -816. The court also what it described as "historical" and "current societal attitudes" toward suicide and assisted suicide, and concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death—that there is, in short, a constitutionally- `right to die.' " After "[w]eighing and then balancing" this interest against Washington's various interests, the court held that the State's assisted-suicide ban was unconstitutional "as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians."[6] The court did not reach the District Court's equal protection holding.[7] We granted certiorari, and now reverse. *710 I We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e. g., ; ; (noting importance of "careful `respect for the teachings of history' "). In almost every State—indeed, in almost every western democracy—it is a crime to assist a [8] The States' assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. ; see Indeed, opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages. See generally Marzen 17-56; New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 77-82 (hereinafter New York Task Force). More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting [9], -295 In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that "[j]ust as a man may commit felony by slaying another so may he do so by slaying himself." 2 Bracton on Laws and Customs of England 423 (G. Woodbine ed., S. Thorne transl., 1968). The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to the King; however, thought Bracton, "if a man slays himself in weariness of life or because he is unwilling to endure further bodily pain [only] his movable goods [were] confiscated." Thus, "[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was introduced into *712 English common law."[10] Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th- and 19th-century American lawyers, referred to suicide as "self-murder" and "the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure" 4 W. Blackstone, Commentaries *189. Blackstone emphasized that "the law has ranked [suicide] among the highest crimes," ib although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity." For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 16, that "[s]elf-murder is by all to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out *713 of a premeditated hatred against his own life or other humor:. his goods and chattels are the king's custom, but not his debts nor lands; but in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing." The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 16-1719, p. 19 Virginia also required ignominious burial for suicides, and their estates were forfeit to the Crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and n. 15 (1930). Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example. Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796: "There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender. [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment." 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796). This statement makes it clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide's family for his wrongdoing. Nonetheless, *714 although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong. See, e. g., ; Von ; That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal." 2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823). This was the well-established common-law view, see In re Joseph G., ; ), as was the similar principle that the consent of a homicide victim is "wholly immaterial to the guilt of the person who cause[d] [his death]," 3 J. Stephen, A History of the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law 451-452 (9th ed. 1885); And the prohibitions against assisting suicide never contained exceptions for those who were near death. Rather, "[t]he life of those to whom life ha[d] become a burden—of those who [were] hopelessly diseased or fatally wounded—nay, even the lives of criminals *715 condemned to death, [were] under the protection of the law, equally as the lives of those who [were] in the full tide of life's enjoyment, and anxious to continue to live." ; see The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, 7, p. 661 (1829)), and many of the new States and Territories followed New York's example. Marzen 73-74. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited "aiding" a suicide and, specifically, "furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life." By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a See -295 The Field Penal Code was adopted in the Dakota Territory in and in New York in 1881, and its language served as a model for several other western States' statutes in the late 19th and early 20th centuries. Marzen 76-77, 205-206, 212-213. California, for example, codified its assisted-suicide prohibition in 1874, using language similar to the Field Code's.[11] In this century, the Model Penal Code also prohibited "aiding" suicide, prompting many States to enact or revise their assisted-suicide *716 bans.[12] The code's drafters observed that "the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim." American Law Institute, Model Penal Code 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980). Though deeply rooted, the States' assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16-18 Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life,with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit "living wills," surrogate health-care decisionmaking, and the withdrawal or refusal of life-sustaining medical treatment. See Vacco v. Quill, post, at 804-806; -820; 4 Mich. 436, 8-480, At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting The Washington statute at issue in this case, Wash. Rev. Code 9A.36.060 was enacted in 1975 as part of a revision of that State's criminal code. Four years later, *717 Washington passed its Natural Death Act, which specifically stated that the "withholding or withdrawal of life-sustaining treatment shall not, for any purpose, constitute a suicide" and that "[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing" Natural Death Act, 1979 Wash. Laws, ch. 112, 8(1), p. 11 (codified at Wash. Rev. Code 70.122.070(1), 70.122.100 ). In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physicianassisted [13] Washington then added a provision to the Natural Death Act expressly excluding physician-assisted 1992 Wash. Laws, ch. 98, 10; Wash. Rev. Code 70.122.100 California voters rejected an assisted-suicide initiative similar to Washington's in 1993. On the other hand, in voters in Oregon enacted, also through ballot initiative, that State's "Death With Dignity Act," which legalized physician-assisted suicide for competent, terminally ill adults.[14] Since the Oregon vote, many proposals to legalize assisted-suicide have been and continue to be introduced in the States' legislatures, but none has been enacted.[15] And *718 just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted See Iowa Code Ann. 707A.2, 707A.3 (Supp. 1997); R. I. Gen. Laws 11-60-1, 11-60-3 Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted Stat. 23 (codified at 42 U.S. C. 14401 et seq. ).[16] *719 Thus, the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues. For example, New York State's Task Force on Life and the Law—an ongoing, blue-ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen—was convened in 1984 and commissioned with "a broad mandate to recommend public policy on issues raised by medical advances." New York Task Force vii. Over the past decade, the Task Force has recommended laws relating to end-of-life decisions, surrogate pregnancy, and organ donation. After studying physician-assisted suicide, however, the Task Force unanimously concluded that "[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved." Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents' constitutional claim. II The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. U.S. 115, ). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. ; In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, ; to have children, ; to direct the education and upbringing of one's children, ; ; to marital privacy, 381 U.S. 9 ; to use contraception, ibid.; ; to bodily integrity, and to abortion, We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment. -279. But we "ha[ve] always been reluctant to expand the concept of substantive due process because guide posts for responsible decision making in this unchartered area are scarce and open-ended." U. S., at By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ib lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 "deeply rooted in this Nation's history and tradition," at ; and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. ; at ; — 278. Our Nation's history, legal traditions, and practices thus provide the crucial "guide posts for responsible decisionmaking," at that direct and restrain our exposition of the Due Process Clause. As we stated recently in the Fourteenth Amendment "forbids the government to infringe `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." 507 U.S., Justice Souter, relying on Justice Harlan's dissenting opinion in would largely abandon this restrained methodology, and instead ask "whether [Washington's] statute sets up one of those `arbitrary impositions' or `purposeless restraints' at odds with the Due Process Clause of the Fourteenth Amendment," post, at 752 (quoting ).[17]*722 In our view, however, the development of this Court's substantive-due-process jurisprudence, described has been a process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not capable of being fully clarified—have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirement—that a challenged state action implicate a fundamental right—before requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case. Turning to the claim at issue here, the Court of Appeals stated that "[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one's death," or, in other words, "[i]s there a right to die?," Similarly, respondents assert a "liberty to choose how to die" and a right to "control of one's final days," Brief for Respondents 7, and describe the asserted liberty as "the right to choose a humane, dignified death," and "the liberty to shape death," As noted above, we have a tradition of carefully formulating the interest at stake in substantivedue-process cases. For example, although is often described as a "right to die" case, see 79 F.3d, ; post, at 745 (Stevens, J., concurring in judgments) ( "the more specific interest in making decisions about *723 how to confront an imminent death"), we were, in fact, more precise: We assumed that the Constitution granted competent persons a "constitutionally protected right to refuse lifesaving hydration and nutrition." ; ("[A] liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions"). The Washington statute at issue in this case prohibits "aid[ing] another person to attempt suicide," Wash. Rev. Code 9A.36.060(1) and, thus, the question before us is whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.[18] We now inquire whether this asserted right has any place in our Nation's traditions. Here, as at 710— 719, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. See ; Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive-dueprocess *724 line of cases, if not with this Nation's history and practice. Pointing to and respondents read our jurisprudence in this area as reflecting a general tradition of "self-sovereignty," Brief for Respondents 12, and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy," ; see 505 U. S., at 8 According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference." Brief for Respondents 10. The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another's assistance. With this "careful description" of respondents' claim in mind, we turn to and In we considered whether Nancy Beth who had been severely injured in an automobile accident and was in a persistive vegetative state, "ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment" at her parents' We began with the observation that "[a]t common law, even the touching of one person by another without consent and without legal justification was a battery." We then the related rule that "informed consent is generally required for medical treatment." After reviewing a long line of relevant state cases, we concluded that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Next, we reviewed our own cases on the subject, and stated that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior *725 " Therefore, "for purposes of [that] case, we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse life saving hydration and nutrition." ; see We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient's wishes concerning the withdrawal of life-sustaining treatment. -281. Respondents contend that in we "acknowledged that competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death," Brief for Respondents 23, and that "the constitutional principle behind recognizing the patient's liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication," Similarly, the Court of Appeals concluded that ", by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one's own death." 79 F.3d, The right assumed in however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Quill v. Vacco, post, at 800-808. In itself, we that most States outlawed assisted suicide—and even more do today—and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow *726 transmuted into a right to assistance in committing 497 U.S., Respondents also rely on There, the Court's opinion concluded that "the essential holding of] should be retained and once again reaffirmed." We held, first, that a woman has a right, before her fetus is viable, to an abortion "without undue interference from the State"; second, that States may restrict postviability abortions, so long as exceptions are made to protect a woman's life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. In reaching this conclusion, the opinion in some detail this Court's substantive-due-process tradition of interpreting the Due Process Clause to protect certain fundamental rights and "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and noted that many of those rights and liberties "involv[e] the most intimate and personal choices a person may make in a lifetime." The Court of Appeals, like the District Court, found "`highly instructive' " and "`almost prescriptive' " for determining "`what liberty interest may inhere in a terminally ill person's choice to commit suicide' ": "Like the decision of whether or not to have an abortion, the decision how and when to die is one of `the most intimate and personal choices a person may make in a lifetime,' a choice `central to personal dignity and autonomy.' " -814. Similarly, respondents emphasize the statement in that: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they *727 formed under compulsion of the State." 505 U.S., Brief for Respondents 12. By choosing this language, the Court's opinion in described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.[19] The opinion moved from the recognition that liberty necessarily includes freedom of conscience and belief about ultimate considerations to the observation that "though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. " That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San An- *728 tonio Independent School and did not suggest otherwise. The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington's assistedsuicide ban be rationally related to legitimate government interests. See 509 U.S. 2, 9-320 ; This requirement is unquestionably met here. As the court below 79 F.3d, -817,[20] Washington's assisted-suicide ban implicates a number of state interests.[21] See -593; Brief for State of California et al.as Amici Curiae 26-29; Brief for United States as Amicus Curiae 16-27. First, Washington has an "unqualified interest in the preservation of human life." The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. See ; Model Penal Code 210.5, Comment 5, 0 ("[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of *729 another").[22] This interest is symbolic and as pirational as well as practical: "While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these " New York Task Force 1-132. Respondents admit that "[t]he State has a real interest in preserving the lives of those who can still contribute to society and have the potential to enjoy life." Brief for Respondents 35, n. 23. The Court of Appeals also Washington's interest in protecting life, but held that the "weight" of this interest depends on the "medical condition and the wishes of the person whose life is at stake." Washington, however, has rejected this sliding-scale approach and, through its assisted-suicide ban, insists that all persons' lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law. See United As we have previously affirmed, the States "may properly decline to make judgments about the `quality' of life that a particular individual may enjoy," *730 This remains true, as makes clear, even for those who are near death. Relatedly, all admit that suicide is a serious public-health problem, especially among persons in otherwise vulnerable groups. See Washington State Dept. of Health, Annual Summary of Vital Statistics 1991, pp. 29-30 (suicide is a leading cause of death in Washington of those between the ages of 14 and 54); New York Task Force 10, 23-33 (suicide rate in the general population is about one percent, and suicide is especially prevalent among the young and the elderly). The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. See ; ("The state recognizes suicide as a manifestation of medical and psychological anguish"); Marzen 107-146. Those who attempt suicide—terminally ill or not—often suffer from depression or other mental disorders. See New York Task Force 13-22, 126-128 (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a "risk factor" because it contributes to depression); PhysicianAssisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 10-11 ; cf. Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide and Euthanasia in Washington State, Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated. H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure 24-25 (1997) (suicidal, terminally ill patients "usually respond well to treatment for depressive illness and pain medication and are then grateful to be alive"); New York Task Force 177-178. *7 The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients' needs. Thus, legal physician-assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses. The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals' conclusion that "the integrity of the medical profession would [not] be threatened in any way by [physician-assisted suicide]," the American Medical Association, like many other medical and physicians' groups, has concluded that "[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as healer." American Medical Association, Code of Ethics 2.211 ; see Council on Ethical and Judicial Affairs, Decisions Near the End of Life, ; New York Task Force 103-109 (discussing physicians' views). And physician-assisted suicide could, it is argued, undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming. Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 355-356 (testimony of Dr. Leon R. Kass) ("The patient's trust in the doctor's whole-hearted devotion to his best interests will be hard to sustain"). Next, the State has an interest in protecting vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes. The Court of Appeals dismissed the State's concern that disadvantaged persons might be pressured into physician-assisted suicide as *732 "ludicrous on its face." We have however, the real risk of subtle coercion and undue influence in end-of-life situations. Similarly, the New York Task Force warned that "[l]egalizing physician-assisted suicide would pose profound risks to many individuals who are ill and vulnerable. The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group." New York Task Force 120; see Compassion in If physicianassisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of endof-life health-care costs. The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference." The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. See New York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down *733 Washington's assisted-suicide ban only "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F.3d, Washington insists, however, that the impact of the court's decision will not and cannot be so limited. Brief for Petitioners 44-. If suicide is protected as a matter of constitutional right, it is argued, "every man and woman in the United States must enjoy it." Compassion in 49 F. 3d, at ; see 4 Mich., at 0, n. -728, n. The Court of Appeals' decision, and its expansive reasoning, provide ample support for the State's concerns. The court noted, for example, that the "decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself," n. 120; that "in some instances, the patient may be unable to self-administer the drugs and administration by the physician may be the only way the patient may be able to receive them," at 8; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide, n. 140. Thus, it turns out that what is couched as a limited right to "physician-assisted suicide" is likely, in effect, a much broader license, which could prove extremely difficult to police and contain.[23] Washington's ban on assisting suicide prevents such erosion. *734 This concern is further supported by evidence about the practice of euthanasia in the Netherlands. The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as "the deliberate termination of another's life at his request"), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit In addition to these latter 1,000 cases, the study found an additional 4,9 cases where physicians administered lethal morphine overdoses without the patients' explicit consent. Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. 12-13 (citing Dutch study). This study suggests that, despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia. ; see generally C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands (1991); H. Hendin, Seduced By Death: Doctors, Patients, and the Dutch Cure (1997). The New York Task Force, citing the Dutch experience, observed that "assisted suicide and euthanasia are closely linked," New York Task Force 145, and concluded that the "risk of abuse is neither speculative nor distant," Washington, like most *735 other States, reasonably ensures against this risk by banning, rather than regulating, assisted See United 3 U.S. 123, We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington's ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code 9A.36.060(1) does not violate the Fourteenth Amendment, either on its face or "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F.3d,[24] * * * Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is *736 reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Brennan

majority

Lewis v. New Orleans

https://www.courtlistener.com/opinion/108965/lewis-v-new-orleans/

https://www.courtlistener.com/api/rest/v3/clusters/108965/

1973-052

Upon the Louisiana Supreme Court's reconsideration of this case in light of Gooding v. Wilson, 405 U.S. 518 (1972), pursuant to our remand, 408 U.S. 913 (1972), that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M. C. S. § 49-7, 263 La. 809, 269 So. 2d 450 (1972).[1] We noted probable jurisdiction, 412 U.S. 926 (1973), and we reverse. We hold that § 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth *132 Amendments and is therefore facially invalid. Section 49-7 provides: "It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: "The proscriptions are narrow and specific— wantonly cursing, reviling, and using obscene or opprobrious language." 263 La., at 827, 269 So. 2d, at 456. Nonetheless, that court took the position that, as written, "it [§ 49-7] is narrowed to `fighting words' uttered to specific persons at a specific time . . . ." Id., at 826, 269 So. 2d, at 456. But § 49-7 plainly has a broader sweep than the constitutional definition of "fighting words" announced in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), and reaffirmed in Gooding v. Wilson, supra, at 522, namely, "those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace." That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of "the conduct of any person towards a member of the city police while in the actual performance of his duty . . . . Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed." 263 La., at 825, 269 So. 2d, at 456.[2] *133 At the least, the proscription of the use of "opprobrious language," embraces words that do not "by their very utterance inflict injury or tend to incite an immediate breach of the peace." That was our conclusion as to the word "opprobrious" in the Georgia statute held unconstitutional in Gooding v. Wilson, where we found that the common dictionary definition of that term embraced words "conveying or intended to convey disgrace" and therefore that the term was not limited to words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." 405 U.S., at 525. The same conclusion is compelled as to the reach of the term in § 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define—as limited by Chaplinsky and Gooding—"opprobrious," or indeed any other term in § 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in Gooding v. Wilson, supra, at 520-521, in this respect: "It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when `no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' . . . the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making *134 the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity' . . . . This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression." In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Cohen v. California, 403 U.S. 15, 18-22 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949); Gooding v. Wilson, supra, at 520. Since § 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid. The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE POWELL, concurring in the result. I previously concurred in the remand of this case, 408 U.S. 913 (1972), but only for reconsideration in light of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Pursuant to the remand order, we now have the Louisiana Supreme Court's decision construing New Orleans Ordinance 828 M. C. S. § 49-7. I agree with the Court's conclusion today that the Louisiana Supreme Court "did not refine or narrow these words [of the ordinance], but took them as they stood" Ante, at 132. In conclusory language, that court construed the ordinance to create *135 a per se rule: Whenever "obscene or opprobrious language" is used "toward or with reference to any member of the city police while in the actual performance of his duty," such language constitutes "fighting words" and hence a violation without regard to the facts and circumstances of a particular case. As so construed, the ordinance is facially overbroad. Quite apart from the ambiguity inherent in the term "opprobrious," words may or may not be "fighting words," depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to "exercise a higher degree of restraint" than the average citizen, and thus be less likely to respond belligerently to "fighting words." 408 U.S. 913. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961). This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in "one-on-one" situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in performance of his duties.[*] Indeed, the language need *136 not be addressed directly to the officer since the ordinance is violated even if the objectionable language is used only "with reference to any member of the city police." Contrary to the city's argument, it is unlikely that limiting the ordinance's application to genuine "fighting words" would be incompatible with the full and adequate performance of an officer's duties. In arrests for the more common street crimes (e. g., robbery, assault, disorderly conduct, resisting arrest), it is usually unnecessary that the person also be charged with the less serious offense of addressing obscene words to the officer. The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident. I therefore concur in the result. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR.

Upon the Louisiana Supreme Court's reconsideration of this case in light of pursuant to our remand, that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M. C. S. 49-7,[1] We noted probable jurisdiction, and we reverse. We hold that 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth *132 Amendments and is therefore facially invalid. Section 49-7 provides: "It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: "The proscriptions are narrow and specific— wantonly cursing, reviling, and using obscene or opprobrious language." Nonetheless, that court took the position that, as written, "it [ 49-7] is narrowed to `fighting words' uttered to specific persons at a specific time" But 49-7 plainly has a broader sweep than the constitutional definition of "fighting words" announced in and reaffirmed in namely, "those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace." That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of "the conduct of any person towards a member of the city police while in the actual performance of his duty Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed."[2] *133 At the least, the proscription of the use of "opprobrious language," embraces words that do not "by their very utterance inflict injury or tend to incite an immediate breach of the peace." That was our conclusion as to the word "opprobrious" in the Georgia statute held unconstitutional in where we found that the common dictionary definition of that term embraced words "conveying or intended to convey disgrace" and therefore that the term was not limited to words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." The same conclusion is compelled as to the reach of the term in 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly define—as limited by Chaplinsky and Gooding—"opprobrious," or indeed any other term in 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in in this respect: "It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when `no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making *134 the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity' This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression." In sum, 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. ; ; Since 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid. The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE POWELL, concurring in the result. I previously concurred in the remand of this case, but only for reconsideration in light of Pursuant to the remand order, we now have the Louisiana Supreme Court's decision construing New Orleans Ordinance 828 M. C. S. 49-7. I agree with the Court's conclusion today that the Louisiana Supreme Court "did not refine or narrow these words [of the ordinance], but took them as they stood" Ante, at 132. In conclusory language, that court construed the ordinance to create *135 a per se rule: Whenever "obscene or opprobrious language" is used "toward or with reference to any member of the city police while in the actual performance of his duty," such language constitutes "fighting words" and hence a violation without regard to the facts and circumstances of a particular case. As so construed, the ordinance is facially overbroad. Quite apart from the ambiguity inherent in the term "opprobrious," words may or may not be "fighting words," depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to "exercise a higher degree of restraint" than the average citizen, and thus be less likely to respond belligerently to "fighting words." See Model Penal Code 250.1, Comment 4 This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in "one-on-one" situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in performance of his duties.[*] Indeed, the language need *136 not be addressed directly to the officer since the ordinance is violated even if the objectionable language is used only "with reference to any member of the city police." Contrary to the city's argument, it is unlikely that limiting the ordinance's application to genuine "fighting words" would be incompatible with the full and adequate performance of an officer's duties. In arrests for the more common street crimes (e. g., robbery, assault, disorderly conduct, resisting arrest), it is usually unnecessary that the person also be charged with the less serious offense of addressing obscene words to the officer. The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident. I therefore concur in the result. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR.

Justice Breyer

dissenting

Summers v. Earth Island Institute

https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/

https://www.courtlistener.com/api/rest/v3/clusters/145904/

2008-027

The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any "`concrete injury'" when the Forest Service sells timber for logging on "many thousands" of small (250-acre or less) woodland parcels without following legally required procedures—procedures which, if followed, could lead the Service to cancel or to modify the sales. Ante, at 1151. *1154 Nothing in the record or the law justifies this counterintuitive conclusion. I A The plaintiffs, respondents in this case, are five environmental organizations. The Earth Island Institute, a California organization, has over 15,000 members in the United States, over 3,000 of whom "use and enjoy the National Forests of California for recreational, educational, aesthetic, spiritual and other purposes." Corrected Complaint for Declaratory and Injunctive Relief in Case No. CIV-F-03-630 REC DLB (ED Cal.) ¶ 8, App. 31 (hereinafter Complaint). The Sequoia ForestKeeper, a small organization, has "100 plus" members who "use the forests of the Southern Sierra Nevada for activities such as hiking, bird and animal watching, aesthetic enjoyment, quiet contemplation, fishing and scientific study." Id., ¶ 9, at 32. Heartwood, Inc., located in Illinois and Indiana, is a coalition of environmental organizations with "members" who "continually use the National Forests for the purposes of ecological health, recreation, aesthetic enjoyment, and other purposes." Id., ¶ 10, at 33. The Center for Biological Diversity, located in Arizona, California, New Mexico, and Washington, has over 5,000 members who "use Forest Service lands," and who are "dedicated to the preservation, protection, and restoration of biological diversity, native species and ecosystems in the Western United States and elsewhere." Ibid., ¶ 11. The Sierra Club has more than "700,000 members nationwide, including thousands of members in California" who "use and enjoy the Sequoia National Forest," for "outdoor recreation and scientific study of various kinds, including nature study, bird-watching, photography, fishing, canoeing, hunting, backpacking, camping, solitude, and a variety of other activities." Id., ¶ 12, at 34. These five organizations point to a federal law that says the Forest Service "shall establish a notice and comment process," along with a procedure for filing administrative "appeals," for "proposed actions... concerning projects and activities implementing land and resource management plans ...." § 322, 106 Stat. 1419, note following 16 U.S.C. § 1612. They add that the Service has exempted from "notice, comment, and appeal" processes its decisions that allow, among other things, salvage-timber sales on burned forest lands of less than 250 acres in size. 36 CFR §§ 215.4(a), 215.12(f) (2008); see also 68 Fed.Reg. 44607-44608 (2003) (describing projects exempted). And they claim that the Service's refusal to provide notice, comment, and appeal procedures violates the statute. Complaint ¶¶ 105-106, App. 61. B The majority says that the plaintiffs lack constitutional standing to raise this claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete "Cas[e]" or "Controvers[y]" that the Constitution grants federal courts the power to resolve. Art. III, § 2, cl. 1. I cannot agree that this is so. To understand the constitutional issue that the majority decides, it may prove helpful to imagine that Congress enacted a statutory provision that expressly permitted environmental groups like the respondents here to bring cases just like the present one, provided (1) that the group has members who have used salvage-timber parcels in the past and are likely to do so in the future, and (2) that the group's members have opposed Forest Service *1155 timber sales in the past (using notice, comment, and appeal procedures to do so) and will likely use those procedures to oppose salvage-timber sales in the future. The majority cannot, and does not, claim that such a statute would be unconstitutional. See Massachusetts v. EPA, 549 U.S. 497, 516-518, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007); Sierra Club v. Morton, 405 U.S. 727, 734-738, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). How then can it find the present case constitutionally unauthorized? I believe the majority answers this question as follows: It recognizes, as this Court has held, that a plaintiff has constitutional standing if the plaintiff demonstrates (1) an "`injury in fact,'" (2) that is "fairly traceable" to the defendant's "challenged action," and which (3) a "favorable [judicial] decision" will likely prevent or redress. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). The majority does not deny that the plaintiffs meet the latter two requirements. It focuses only upon the first, the presence of "actual," as opposed to "conjectural or hypothetical," injury. Id., at 180, 120 S. Ct. 693. In doing so, it properly agrees that the "organizations" here can "assert the standing of their members." Ante, at 1149. It points out that injuries to the "members' recreational" or even "mere esthetic interests... will suffice." Ibid. It does not claim that the procedural nature of the plaintiffs' claim makes the difference here, for it says only that "deprivation of a procedural right without some concrete interest" thereby affected, i.e., "a procedural right in vacuo" would prove "insufficient to create Article III standing." Ante, at 1151 (emphasis added); see also EPA, 549 U.S., at 517-518, 127 S. Ct. 1438. The majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. Ante, at 1149-1150. To put the matter in terms of my hypothetical statute, the majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past (i.e., parcels that the Service does not subject to the notice, comment, and appeal procedures required by law), have failed to show that they have members likely to use such parcels in the future. II How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not "imminent"—a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. See Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 734, 118 S. Ct. 1665, 140 L. Ed. 2d 921 (1998). I concede that the Court has sometimes used the word "imminent" in the context of constitutional standing. But it has done so primarily to emphasize that the harm in question—the harm that was not "imminent"—was merely "conjectural" or "hypothetical" or otherwise speculative. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Where the Court has directly focused upon the matter, i.e., where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has *1156 asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. That is what the Court said in Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), a case involving a plaintiff's attempt to enjoin police use of chokeholds. The Court wrote that the plaintiff, who had been subject to the unlawful chokehold in the past, would have had standing had he shown "a realistic threat" that reoccurrence of the challenged activity would cause him harm "in the reasonably near future." Id., at 107, n. 7, 108, 103 S. Ct. 1660 (emphasis added). Precedent nowhere suggests that the "realistic threat" standard contains identification requirements more stringent than the word "realistic" implies. See Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982). How could the Court impose a stricter criterion? Would courts deny standing to a holder of a future interest in property who complains that a life tenant's waste of the land will almost inevitably hurt the value of his interest—though he will have no personal interest for several years into the future? Would courts deny standing to a landowner who complains that a neighbor's upstream dam constitutes a nuisance—even if the harm to his downstream property (while bound to occur) will not occur for several years? Would courts deny standing to an injured person seeking a protection order from future realistic (but nongeographically specific) threats of further attacks? To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, EPA's failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. EPA, 549 U.S., at 522-523, 127 S. Ct. 1438. The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations "in the reasonably near future." See Defendants' Motion to Clarify and Amend Judgment in No. CIV-F-03-6386-JKS-DLB (ED Cal.), pp. 13-14. How then can the Court deny that the plaintiffs have shown a "realistic" threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members? Consider: Respondents allege, and the Government has conceded, that the Forest Service took wrongful actions (such as selling salvage timber) "thousands" of times in the two years prior to suit. Id., at 6; see also id., Exh. 2, Decl. of Gloria Manning, Associate Deputy Chief for National Forest System ¶ 6, p. 3 (identifying 3,377 "proposed decisions," "[a]s of July 1, 2005," that would be excluded from notice, comment, and appeal procedures). The Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, aesthetic, and environmental purposes. Complaint ¶¶ 8-12, App. 31-34. The Complaint further alleges, and no one denies, that these organizations (and their members), believing that actions such as salvage-timber sales harm those interests, regularly oppose salvage-timber sales (and similar actions) in proceedings before the agency. Ibid. And the Complaint alleges, and no *1157 one denies, that the organizations intend to continue to express their opposition to such actions in those proceedings in the future. Ibid. Consider further: The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that "at least one identified member ha[s] suffered ... harm." Ante, at 1151. Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests "hundreds of times," that he has often visited the Allegheny National Forest in the past, that he has "probably commented on a thousand" Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forest—one of the forests he has visited in the past. ¶¶ 6, 13, App. E to Pet. for Cert. 68a, 69a, 71a. The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a "realistic" threat that a project will impact land Bensman uses? To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it? And Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636, on which the majority so heavily relies, involved plaintiffs who challenged (true, a "massive") development, but only on a single previously determined site, about 80 acres in size, in a portion of the forest with a "limited ... number of visitors." Id., at 728, 92 S. Ct. 1361. The Court's unwillingness to infer harm to the Sierra Club's members there does not demand a similar unwillingness here, where the challenge is to procedures affecting "thousands" of sites, involving hundreds of times as much acreage, where the precise location of each may not yet be known. In Sierra Club, ibid., it may have been unreasonable simply to assume that members would suffer an "injury in fact." But here, given the very different factual circumstances, it is unreasonable to believe they would not. Whatever doubt may remain is settled by the affidavits the plaintiffs submitted after the Burnt Ridge dispute was settled (while the other claims in the Complaint remained alive). The majority says it will not consider those affidavits because they were submitted "[a]fter the District Court had entered judgment." Ante, at 1150, n. But the plaintiffs submitted the affidavits after judgment (in opposition to the Government's motion for a stay) because the Burnt Ridge dispute on which they had relied to show standing at the outset of suit had by that point been settled. No longer wishing to rely solely on evidence of their members' interest in that particular project, the plaintiff organizations submitted several other affidavits. Why describe this perfectly sensible response to the settlement of some of the Complaint's claims as a "retroactiv[e]" attempt to "me[e]t the challenge to their standing at the time of judgment"? Ibid. In fact, the Government did not challenge standing until that point, *1158 so of course respondents (who all agree had standing at the outset) did not respond with affidavits until later—when their standing was challenged. This can hardly be characterized as an attempt to "resurrect and alter the outcome" in the case. Ante, at 1153. Regardless, the Constitution does not bar the filing of further affidavits, nor does any statute. The Federal Rules of Civil Procedure contain no such bar. Indeed, those Rules provide a judge with liberal discretion to permit a plaintiff to amend a complaint—even after one dispute (of several) is settled. So why would they not permit the filing of affidavits—at least with the judge's permission? See Fed. Rule Civ. Proc. 15(d) ("The court may permit supplementation even though the original pleading is defective in stating a claim or defense"). The affidavits in question describe a number of then-pending Forest Service projects, all excluded from notice, comment, and appeal under the Forest Service regulations and all scheduled to take place on parcels that the plaintiff organizations' members use. Erik Ryberg, for example, a member of the Center for Biological Diversity, described in his affidavit a proposed logging project scheduled for the Payette National Forest—an area with which he is "personally familiar." ¶ 6, App. 90. A second affidavit filed by Jim Bensman described a salvage-timber sale scheduled for the Hoosier National Forest—an area Bensman had visited "multiple times" and to which he planned to return in the coming weeks—and one planned for the Daniel Boone National Forest—also used by Bensman—which would "impact [Heartwood's] members['] use of the areas." ¶¶ 8-9, id., at 85-86. The affidavits also describe, among other things, the frequency with which the organizations' members routinely file administrative appeals of salvage-timber sales and identify a number of proposed and pending projects that certain Sierra Club members wished to appeal. See Decl. of Rene Voss ¶ 3, id., at 94 (describing a proposed logging and prescribed burn planned for the Gallatin National Forest); Decl. of Craig Thomas ¶¶ 3, 13, id., at 95, 98 (describing Thomas' "use" and "enjoy[ment]" of the "Sierra Nevada national forests for recreational, aesthetic, scientific and professional pursuits," and attesting to "eighteen separate logging projects," all categorically excluded, proposed for one such forest tract). These allegations and affidavits more than adequately show a "realistic threat" of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not "be blind to what must be necessarily known to every intelligent person." In re Wo Lee, 26 F. 471, 475 (1886). Applying that standard, I would find standing here. * * * I recognize that the Government raises other claims and bases upon which to deny standing or to hold that the case is not ripe for adjudication. I believe that these arguments are without merit. But because the majority does not discuss them here, I shall not do so either. With respect, I dissent.

The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any "`concrete injury'" when the Forest Service sells timber for logging on "many thousands" of small (250-acre or less) woodland parcels without following legally required procedures—procedures which, if followed, could lead the Service to cancel or to modify the sales. Ante, at 1151. *1154 Nothing in the record or the law justifies this counterintuitive conclusion. I A The plaintiffs, respondents in this case, are five environmental organizations. The Earth Island Institute, a California organization, has over 15,000 members in the United States, over 3,000 of whom "use and enjoy the National Forests of California for recreational, educational, aesthetic, spiritual and other purposes." Corrected Complaint for Declaratory and Injunctive Relief in Case No. CIV-F-03-630 REC DLB (ED Cal.) ¶ 8, App. 31 (hereinafter Complaint). The Sequoia ForestKeeper, a small organization, has "100 plus" members who "use the forests of the Southern Sierra Nevada for activities such as hiking, bird and animal watching, aesthetic enjoyment, quiet contemplation, fishing and scientific study." at 32. Heartwood, Inc., located in Illinois and Indiana, is a coalition of environmental organizations with "members" who "continually use the National Forests for the purposes of ecological health, recreation, aesthetic enjoyment, and other purposes." at 33. The Center for Biological Diversity, located in Arizona, California, New Mexico, and Washington, has over 5,000 members who "use Forest Service lands," and who are "dedicated to the preservation, protection, and restoration of biological diversity, native species and ecosystems in the Western United States and elsewhere." ¶ 11. The Sierra Club has more than "700,000 members nationwide, including thousands of members in California" who "use and enjoy the Sequoia National Forest," for "outdoor recreation and scientific study of various kinds, including nature study, bird-watching, photography, fishing, canoeing, hunting, backpacking, camping, solitude, and a variety of other activities." at 34. These five organizations point to a federal law that says the Forest Service "shall establish a notice and comment process," along with a procedure for filing administrative "appeals," for "proposed actions. concerning projects and activities implementing land and resource management plans" 322, note following 16 U.S.C. 1612. They add that the Service has exempted from "notice, comment, and appeal" processes its decisions that allow, among other things, salvage-timber sales on burned forest lands of less than 250 acres in size. 36 CFR 215.4(a), 215.12(f) (2008); see also 68 Fed.Reg. 44607-44608 (2003) (describing projects exempted). And they claim that the Service's refusal to provide notice, comment, and appeal procedures violates the statute. Complaint ¶5-106, App. 61. B The majority says that the plaintiffs lack constitutional standing to raise this claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete "Cas[e]" or "Controvers[y]" that the Constitution grants federal courts the power to resolve. Art. III, 2, cl. 1. I cannot agree that this is so. To understand the constitutional issue that the majority decides, it may prove helpful to imagine that Congress enacted a statutory provision that expressly permitted environmental groups like the respondents here to bring cases just like the present one, provided (1) that the group has members who have used salvage-timber parcels in the past and are likely to do so in the future, and (2) that the group's members have opposed Forest Service *1155 timber sales in the past (using notice, comment, and appeal procedures to do so) and will likely use those procedures to oppose salvage-timber sales in the future. The majority cannot, and does not, claim that such a statute would be unconstitutional. See ; Sierra How then can it find the present case constitutionally unauthorized? I believe the majority answers this question as follows: It recognizes, as this Court has held, that a plaintiff has constitutional standing if the plaintiff demonstrates (1) an "`injury in fact,'" (2) that is "fairly traceable" to the defendant's "challenged action," and which (3) a "favorable [judicial] decision" will likely prevent or redress. Friends of Earth, The majority does not deny that the plaintiffs meet the latter two requirements. It focuses only upon the first, the presence of "actual," as opposed to "conjectural or hypothetical," injury. In doing so, it properly agrees that the "organizations" here can "assert the standing of their members." Ante, at 1149. It points out that injuries to the "members' recreational" or even "mere esthetic interests. will suffice." It does not claim that the procedural nature of the plaintiffs' claim makes the difference here, for it says only that "deprivation of a procedural right without some concrete interest" thereby affected, i.e., "a procedural right in vacuo" would prove "insufficient to create Article III standing." Ante, at 1151 (emphasis added); see also -518, The majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. Ante, at 1149-1150. To put the matter in terms of my hypothetical statute, the majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past (i.e., parcels that the Service does not subject to the notice, comment, and appeal procedures required by law), have failed to show that they have members likely to use such parcels in the future. II How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not "imminent"—a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. See Ohio Forestry Assn., I concede that the Court has sometimes used the word "imminent" in the context of constitutional standing. But it has done so primarily to emphasize that the harm in question—the harm that was not "imminent"—was merely "conjectural" or "hypothetical" or otherwise speculative. Where the Court has directly focused upon the matter, i.e., where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has *1156 asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. That is what the Court said in Los a case involving a plaintiff's attempt to enjoin police use of chokeholds. The Court wrote that the plaintiff, who had been subject to the unlawful chokehold in the past, would have had standing had he shown "a realistic threat" that reoccurrence of the challenged activity would cause him harm "in the reasonably near future." (emphasis added). Precedent nowhere suggests that the "realistic threat" standard contains identification requirements more stringent than the word "realistic" implies. See How could the Court impose a stricter criterion? Would courts deny standing to a holder of a future interest in property who complains that a life tenant's waste of the land will almost inevitably hurt the value of his interest—though he will have no personal interest for several years into the future? Would courts deny standing to a landowner who complains that a neighbor's upstream dam constitutes a nuisance—even if the harm to his downstream property (while bound to occur) will not occur for several years? Would courts deny standing to an injured person seeking a protection order from future realistic (but nongeographically specific) threats of further attacks? To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, 's failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. -523, The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations "in the reasonably near future." See Defendants' Motion to Clarify and Amend Judgment in No. CIV-F-03-6386-JKS-DLB (ED Cal.), pp. 13-14. How then can the Court deny that the plaintiffs have shown a "realistic" threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members? Consider: Respondents allege, and the Government has conceded, that the Forest Service took wrongful actions (such as selling salvage timber) "thousands" of times in the two years prior to suit. ; see also Exh. 2, Decl. of Gloria Manning, Associate Deputy Chief for National Forest System ¶ 6, p. 3 (identifying 3,377 "proposed decisions," "[a]s of July 1, 2005," that would be excluded from notice, comment, and appeal procedures). The Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, aesthetic, and environmental purposes. Complaint ¶¶ 8-12, App. 31-34. The Complaint further alleges, and no one denies, that these organizations (and their members), believing that actions such as salvage-timber sales harm those interests, regularly oppose salvage-timber sales (and similar actions) in proceedings before the agency. And the Complaint alleges, and no *1157 one denies, that the organizations intend to continue to express their opposition to such actions in those proceedings in the future. Consider further: The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that "at least one identified member ha[s] suffered harm." Ante, at 1151. Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests "hundreds of times," that he has often visited the Allegheny National Forest in the past, that he has "probably commented on a thousand" Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forest—one of the forests he has visited in the past. ¶¶ 6, 13, App. E to Pet. for Cert. 68a, 69a, 71a. The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a "realistic" threat that a project will impact land Bensman uses? To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it? And Sierra on which the majority so heavily relies, involved plaintiffs who challenged (true, a "massive") development, but only on a single previously determined site, about 80 acres in size, in a portion of the forest with a "limited number of visitors." The Court's unwillingness to infer harm to the Sierra Club's members there does not demand a similar unwillingness here, where the challenge is to procedures affecting "thousands" of sites, involving hundreds of times as much acreage, where the precise location of each may not yet be known. In Sierra Club, ib it may have been unreasonable simply to assume that members would suffer an "injury in fact." But here, given the very different factual circumstances, it is unreasonable to believe they would not. Whatever doubt may remain is settled by the affidavits the plaintiffs submitted after the Burnt Ridge dispute was settled (while the other claims in the Complaint remained alive). The majority says it will not consider those affidavits because they were submitted "[a]fter the District Court had entered judgment." Ante, at 1150, n. But the plaintiffs submitted the affidavits after judgment (in opposition to the Government's motion for a stay) because the Burnt Ridge dispute on which they had relied to show standing at the outset of suit had by that point been settled. No longer wishing to rely solely on evidence of their members' interest in that particular project, the plaintiff organizations submitted several other affidavits. Why describe this perfectly sensible response to the settlement of some of the Complaint's claims as a "retroactiv[e]" attempt to "me[e]t the challenge to their standing at the time of judgment"? In fact, the Government did not challenge standing until that point, *1158 so of course respondents (who all agree had standing at the outset) did not respond with affidavits until later—when their standing was challenged. This can hardly be characterized as an attempt to "resurrect and alter the outcome" in the case. Ante, at 1153. Regardless, the Constitution does not bar the filing of further affidavits, nor does any statute. The Federal Rules of Civil Procedure contain no such bar. Indeed, those Rules provide a judge with liberal discretion to permit a plaintiff to amend a complaint—even after one dispute (of several) is settled. So why would they not permit the filing of affidavits—at least with the judge's permission? See Fed. Rule Civ. Proc. 15(d) ("The court may permit supplementation even though the original pleading is defective in stating a claim or defense"). The affidavits in question describe a number of then-pending Forest Service projects, all excluded from notice, comment, and appeal under the Forest Service regulations and all scheduled to take place on parcels that the plaintiff organizations' members use. Erik Ryberg, for example, a member of the Center for Biological Diversity, described in his affidavit a proposed logging project scheduled for the Payette National Forest—an area with which he is "personally familiar." ¶ 6, App. 90. A second affidavit filed by Jim Bensman described a salvage-timber sale scheduled for the Hoosier National Forest—an area Bensman had visited "multiple times" and to which he planned to return in the coming weeks—and one planned for the Daniel Boone National Forest—also used by Bensman—which would "impact [Heartwood's] members['] use of the areas." ¶¶ 8-9, The affidavits also describe, among other things, the frequency with which the organizations' members routinely file administrative appeals of salvage-timber sales and identify a number of proposed and pending projects that certain Sierra Club members wished to appeal. See Decl. of Rene Voss ¶ 3, ; Decl. of Craig Thomas ¶¶ 3, 13, These allegations and affidavits more than adequately show a "realistic threat" of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not "be blind to what must be necessarily known to every intelligent person." In re Wo Lee, Applying that standard, I would find standing here. * * * I recognize that the Government raises other claims and bases upon which to deny standing or to hold that the case is not ripe for adjudication. I believe that these arguments are without merit. But because the majority does not discuss them here, I shall not do so either. With respect, I dissent.

Justice White

majority

Turner v. Murray

https://www.courtlistener.com/opinion/111660/turner-v-murray/

https://www.courtlistener.com/api/rest/v3/clusters/111660/

1985-076

Petitioner is a black man sentenced to death for the murder of a white storekeeper. The question presented is whether the trial judge committed reversible error at voir dire by refusing petitioner's request to question prospective jurors on racial prejudice. I On July 12, 1978, petitioner entered a jewelry store in Franklin, Virginia, armed with a sawed-off shotgun. He demanded that the proprietor, W. Jack Smith, Jr., put jewelry and money from the cash register into some jewelry bags. Smith complied with petitioner's demand, but triggered a *30 silent alarm, alerting the Police Department. When Alan Bain, a police officer, arrived to inquire about the alarm, petitioner surprised him and forced him to surrender his revolver. Having learned that Smith had triggered a silent alarm, petitioner became agitated. He fired toward the rear wall of the store and stated that if he saw or heard any more police officers, he was going to start killing those in the store.[1] When a police siren sounded, petitioner walked to where Smith was stationed behind a counter and without warning shot him in the head with Bain's pistol, wounding Smith and causing him to slump incapacitated to the floor. Officer Bain attempted to calm petitioner, promising to take him anywhere he wanted to go and asking him not to shoot again. Petitioner angrily replied that he was going to kill Smith for "snitching," and fired two pistol shots into Smith's chest, fatally wounding him. As petitioner turned away from shooting Smith, Bain was able to disarm him and place him under arrest. A Southampton County, Virginia, grand jury indicted petitioner on charges of capital murder, use of a firearm in the commission of a murder, and possession of a sawed-off shotgun in the commission of a robbery. Petitioner requested and was granted a change of venue to Northampton County, Virginia, a rural county some 80 miles from the location of the murder. Prior to the commencement of voir dire, petitioner's counsel submitted to the trial judge a list of proposed questions, including the following: " `The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will these facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair *31 and impartial verdict based solely on the evidence?' " Turner v. Commonwealth, 221 Va. 513, 522, n. 8, 273 S.E.2d 36, 42, n. 8 (1980). The judge declined to ask this question, stating that it "has been ruled on by the Supreme Court."[2] App. 15. The judge did ask the venire, who were questioned in groups of five in petitioner's presence, whether any person was aware of any reason why he could not render a fair and impartial verdict, to which all answered "no." Id., at 17, 78. At the time the question was asked, the prospective jurors had no way of knowing that the murder victim was white. The jury that was empaneled, which consisted of eight whites and four blacks, convicted petitioner on all of the charges against him. Id., at 97 and Addendum. After a separate sentencing hearing on the capital charge, the jury recommended that petitioner be sentenced to death, a recommendation the trial judge accepted. Id., at 18, 19. Petitioner appealed his death sentence to the Virginia Supreme Court. Among other points, he argued that the trial judge deprived him of his constitutional right to a fair and impartial jury by refusing to question prospective jurors on racial prejudice. The Virginia Supreme Court rejected this argument. Relying on our decision in Ristaino v. Ross, 424 U.S. 589 (1976), the court stated that a trial judge's refusal to ask prospective jurors about their racial attitudes, while perhaps not the wisest decision as a matter of policy, is not constitutionally objectionable in the absence of factors akin to those in Ham v. South Carolina, 409 U.S. 524 (1973).[3]Turner v. Commonwealth, supra, at 523, 273 S. E. *32 2d, at 42. The court held that "[t]he mere fact that a defendant is black and that a victim is white does not constitutionally mandate . . . an inquiry [into racial prejudice]." Ibid.[4] Having failed in his direct appeal, petitioner sought habeas corpus relief in the Federal District Court for the Eastern District of Virginia. App. 97. Again he argued without success that the trial judge's refusal to ask prospective jurors about their racial attitudes deprived him of his right to a fair trial. Id., at 102-104. The District Court noted that in Ristaino, supra, which involved a crime of interracial violence,[5] we held that inquiry into racial prejudice at voir dire was not constitutionally required because the facts of the case " `did not suggest a significant likelihood that racial prejudice might infect [the defendant's] trial.' " App. 103 (quoting 424 U.S., at 598). The court found the present case like Ristaino and unlike Ham in that "racial issues [are] not `inextricably bound up with the facts at trial.' " App. 103. The United States Court of Appeals for the Fourth Circuit affirmed the District Court's denial of habeas corpus relief for *33 petitioner. Turner v. Bass, 753 F.2d 342 (1985). Like the Virginia Supreme Court and the District Court, the Fourth Circuit found no "special circumstances" in this case analogous to those in Ham. The court rejected the idea that "the nature of the crime or punishment itself is . . . a special circumstance." 753 F.2d, at 345. Relying on Ristaino, the court likewise found no special circumstance in the fact that petitioner is black and his victim white.[6] We granted certiorari to review the Fourth Circuit's decision that petitioner was not constitutionally entitled to have potential jurors questioned concerning racial prejudice. 471 U.S. 1098 (1985). We reverse. II The Fourth Circuit's opinion correctly states the analytical framework for evaluating petitioner's argument: "The broad inquiry in each case must be . . . whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as [they stand] unsworne." 753 F.2d, at 345-346 (internal quotation omitted). The Fourth Circuit was correct, too, in holding that under Ristaino the mere fact that petitioner is black and his victim white does not constitute a "special circumstance" of constitutional proportions. What sets this case apart from Ristaino, however, is that in addition to petitioner's being accused of a crime against a white victim, the crime charged was a capital offense. In a capital sentencing proceeding before a jury, the jury is called upon to make a "highly subjective, `unique, individualized *34 judgment regarding the punishment that a particular person deserves.' " Caldwell v. Mississippi, 472 U.S. 320, 340, n. 7 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 900 (1983) (REHNQUIST, J., concurring in judgment)). The Virginia statute under which petitioner was sentenced is instructive of the kinds of judgments a capital sentencing jury must make. First, in order to consider the death penalty, a Virginia jury must find either that the defendant is likely to commit future violent crimes or that his crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim." Va. Code § 19.2-264.2 (1983). Second, the jury must consider any mitigating evidence offered by the defendant. Mitigating evidence may include, but is not limited to, facts tending to show that the defendant acted under the influence of extreme emotional or mental disturbance, or that at the time of the crime the defendant's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired." § 19.2-262.4(B). Finally, even if the jury has found an aggravating factor, and irrespective of whether mitigating evidence has been offered, the jury has discretion not to recommend the death sentence, in which case it may not be imposed. § 19.2-264.2. Virginia's death-penalty statute gives the jury greater discretion than other systems which we have upheld against constitutional challenge. See, e. g., Jurek v. Texas, 428 U.S. 262 (1976). However, our cases establish that every capital sentencer must be free to weigh relevant mitigating evidence before deciding whether to impose the death penalty, see, e. g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586, 597-609 (1978) (plurality opinion), and that in the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death. *35 Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner's evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror's decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.[7] The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. "The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-999 (1983). We have struck down capital sentences when we found that the circumstances *36 under which they were imposed "created an unacceptable risk that `the death penalty [may have been] meted out arbitrarily or capriciously' or through `whim . . . or mistake.' " Caldwell, supra, at 343 (O'CONNOR, J., concurring in part and concurring in judgment) (citation omitted). In the present case, we find the risk that racial prejudice may have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized.[8] By refusing to question prospective jurors on racial prejudice, the trial judge failed to adequately protect petitioner's constitutional right to an impartial jury.[9] III We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the *37 race of the victim and questioned on the issue of racial bias.[10] The rule we propose is minimally intrusive; as in other cases involving "special circumstances," the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. See Ham v. South Carolina, 409 U. S., at 527. Also, a defendant cannot complain of a judge's failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry. IV The inadequacy of voir dire in this case requires that petitioner's death sentence be vacated. It is not necessary, however, that he be retried on the issue of guilt. Our judgment in this case is that there was an unacceptable risk of racial prejudice infecting the capital sentencing proceeding. This judgment is based on a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case.[11] At the guilt phase of petitioner's trial, the jury had no greater discretion than it would have had if the crime charged had been noncapital murder. Thus, with respect to the guilt phase of petitioner's trial, we find this case *38 to be indistinguishable from Ristaino, to which we continue to adhere.[12] See n. 5, supra. 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. THE CHIEF JUSTICE concurs in the judgment. JUSTICE BRENNAN, concurring in part and dissenting in part. The Court's judgment vacates petitioner's sentence of death while refusing to disturb his conviction. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), I agree that the death sentence in this case must be vacated. But even if I did not hold that view, I would still find that the sentence was unconstitutionally imposed in this case. In my view, the constitutional right of a defendant to have a trial judge ask the members *39 of the venire questions concerning possible racial bias is triggered whenever a violent interracial crime has been committed. See Ross v. Massachusetts, 414 U.S. 1080 (1973) (MARSHALL, J., dissenting from denial of certiorari). The reality of race relations in this country is such that we simply may not presume impartiality, and the risk of bias runs especially high when members of a community serving on a jury are to be confronted with disturbing evidence of criminal conduct that is often terrifying and abhorrent. In analyzing the question of when the Constitution requires trial judges to accommodate defendants' requests for inquiries into racial prejudice, I, like the Court, am influenced by what the Court correctly describes as the "ease" with which the risk may be minimized. Ante, at 36. In any event, I cannot fully join either the Court's judgment or opinion. For in my view, the decision in this case, although clearly half right, is even more clearly half wrong. After recognizing that the constitutional guarantee of an impartial jury entitles a defendant in a capital case involving interracial violence to have prospective jurors questioned on the issue of racial bias — a holding which requires that this case be reversed and remanded for new sentencing — the Court disavows the logic of its own reasoning in denying petitioner Turner a new trial on the issue of his guilt. It accomplishes this by postulating a jury role at the sentencing phase of a capital trial fundamentally different from the jury function at the guilt phase and by concluding that the former gives rise to a significantly greater risk of a verdict tainted by racism. Because I believe that the Court's analysis improperly intertwines the significance of the risk of bias with the consequences of bias, and because in my view the distinction between the jury's role at a guilt trial and its role at a sentencing hearing is a distinction without substance in so far as juror bias is concerned, I join only that portion of the Court's judgment granting petitioner a new sentencing proceeding, *40 but dissent from that portion of the judgment refusing to vacate the conviction. The Sixth Amendment guarantees criminal defendants an impartial jury. This is not mere exhortation for it has been noted that "the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial." Ham v. South Carolina, 409 U.S. 524, 532 (1973) (MARSHALL, J. concurring in part and dissenting in part). Among the most important of the means designed to insure an impartial jury is the right to strike those jurors who manifest an inability to try the case solely on the basis of the evidence. This right to exclude incompetent jurors cannot be exercised meaningfully or effectively unless counsel has sufficient information with which to evaluate members of the venire. As JUSTICE WHITE noted for the Court in Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981), "lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts" (footnote omitted). Recognizing this fact, we held long ago that "essential demands of fairness" may require a judge to ask jurors whether they entertain any racial prejudice. Aldridge v. United States, 283 U.S. 308 (1931); see also Ham v. South Carolina. More recently, we attempted to refine the analysis, and declared that when there is a showing of a "likelihood" that racial or ethnic prejudice may affect the jurors, the Constitution requires a trial judge to honor a defendant's request to examine the jurors' ability to deal impartially with the evidence adduced at trial. Rosales-Lopez, supra at 190. Exercising our supervisory powers over the federal courts, we held in Rosales-Lopez that when a violent crime has been committed, and the victim and the accused are of different races, a per se inference of a "reasonable possibility" of prejudice is shown. In the present case, we deal with a criminal case from a state court involving an act of interracial violence, *41 and are faced with the question of what factors and circumstances will elevate this presumptive "reasonable possibility" of prejudice into a constitutionally significant "likelihood" of prejudice. The Court identifies three factors, the "conjunction" of which in its view entitled petitioner Turner as a matter of constitutional right to have the jury questioned on racial bias. These are (1) the fact that the crime committed involved interracial violence; (2) the broad discretion given the jury at the death penalty hearing; and (3) the "special seriousness of the risk of improper sentencing in a capital case." Ante, at 37. I agree with the Court that when these three factors are present, as they were at petitioner's sentencing hearing, the trial court commits constitutional error in refusing a defense request to ask the jurors if the race of either the victim or the accused will bear on their ability to render a decision based solely on the evidence. What I cannot accept is that the judge is released from this obligation to insure an impartial jury — or, to put it another way, that the defendant is stripped of this constitutional safeguard — when a capital jury is hearing evidence concerning a crime involving interracial violence but passing "only" on the issue of guilt/innocence, rather than on the appropriate sentence. The Court's argument is simply untenable on its face. As best I can understand it, the thesis is that since there is greater discretion entrusted to a capital jury in the sentencing phase than in the guilt phase, "there is [in the sentencing hearing] a unique opportunity for racial prejudice to operate but remain undetected." Ante, at 35. However, the Court's own discussion of the issues demonstrates that the opportunity for racial bias to taint the jury process is not "uniquely" present at a sentencing hearing, but is equally a factor at the guilt phase of a bifurcated capital trial. According to the Court, a prejudiced juror sitting at a sentencing hearing might be influenced by his racial bias in deciding whether the crime committed involved aggravating *42 factors specified under state law; the Court notes that racial prejudice might similarly cause that juror to be less favorably inclined toward an accused's evidence of mitigating circumstances. Moreover, the Court informs us: "More subtle, less consciously held racial attitudes could also influence a juror's decision. . . . Fear of blacks, which could easily be stirred up by the violent facts of [a] crime, might incline a juror to favor the death penalty." Ibid. The flaw in this "analysis" is that there is simply no connection between the proposition advanced, the support proffered for that thesis, and the conclusion drawn. In other words, it is certainly true, as the Court maintains, that racial bias inclines one to disbelieve and disfavor the object of the prejudice, and it is similarly incontestable that subconscious, as well as express, racial fears and hatreds operate to deny fairness to the person despised; that is why we seek to insure that the right to an impartial jury is a meaningful right by providing the defense with the opportunity to ask prospective jurors questions designed to expose even hidden prejudices. But the Court never explains why these biases should be of less concern at the guilt phase than at the sentencing phase. The majority asserts that "a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law." Ibid. But might not that same juror be influenced by those same prejudices in deciding whether, for example, to credit or discredit white witnesses as opposed to black witnesses at the guilt phase? Might not those same racial fears that would incline a juror to favor death not also incline a juror to favor conviction? A trial to determine guilt or innocence is, at bottom, nothing more than the sum total of a countless number of small discretionary decisions made by each individual who sits in the jury box. The difference between conviction and acquittal *43 turns on whether key testimony is believed or rejected; on whether an alibi sounds plausible or dubious; on whether a character witness appears trustworthy or unsavory; and on whether the jury concludes that the defendant had a motive, the inclination, or the means available to commit the crime charged. A racially biased juror sits with blurred vision and impaired sensibilities and is incapable of fairly making the myriad decisions that each juror is called upon to make in the course of a trial. To put it simply, he cannot judge because he has prejudged. This is equally true at the trial on guilt as at the hearing on sentencing. To sentence an individual to death on the basis of a proceeding tainted by racial bias would violate the most basic values of our criminal justice system. This the Court understands. But what it seems not to comprehend is that to permit an individual to be convicted by a prejudiced jury violates those same values in precisely the same way. The incongruity of the Court's split judgment is made apparent after it is appreciated that the opportunity for bias to poison decisionmaking operates at a guilt trial in the same way as it does at a sentencing hearing and after one returns to the context of the case before us. Implicit in the Court's judgment is the acknowledgment that there was a likelihood that the jury that pronounced the death sentence acted, in part, on the basis of racial prejudice. But the exact same jury convicted Turner. Does the Court really mean to suggest that the constitutional entitlement to an impartial jury attaches only at the sentencing phase? Does the Court really believe that racial biases are turned on and off in the course of one criminal prosecution? My sense is that the Court has confused the consequences of an unfair trial with the risk that a jury is acting on the basis of prejudice. In other words, I suspect that what is really animating the Court's judgment is the sense of outrage it rightly experiences at the prospect of a man being sentenced to death on the basis of the color of his skin. Perhaps *44 the Court is slightly less troubled by the prospect of a racially motivated conviction unaccompanied by the death penalty, and I suppose that if, for some unimaginable reason, I had to choose between the two cases, and could only rectify one, I would remedy the case where death had been imposed. But there is no need to choose between the two cases. To state what seems to me obvious, the constitutional right implicated is the right to be judged by an impartial jury, regardless of the sentence, and the constitutional focus thus belongs on whether there is a likelihood of bias, and not on what flows from that bias. In Ham v. South Carolina, 409 U.S. 524 (1973), we reversed the conviction of a young black man who was charged with and convicted of possession of marijuana; because the man was known in the community as a civil rights activist, and because we were persuaded that racial issues were inextricably bound up with the conduct of the trial, we concluded that it was likely that any prejudice that individual members of the jury might harbor would be intensified and held that under those circumstances the trial judge was required to oblige the defense request to inquire into the jury's possible racial bias. We did not reject the petitioner's claim in that case because he was sentenced only to 18 months' imprisonment. Surely one has a right to an impartial jury whether one is subject to punishment for a day or a lifetime. The Court may believe that it is being Solomonic in "splitting the difference" in this case and granting petitioner a new sentencing hearing while denying him the other "half" of the relief demanded. Starkly put, petitioner "wins" in that he gets to be resentenced, while the State "wins" in that it does not lose its conviction. But King Solomon did not, in fact, split the baby in two, and had he done so, I suspect that he would be remembered less for his wisdom than for his hardheartedness. Justice is not served by compromising principles in this way. I would reverse the conviction as well as the sentence in this case to insure compliance with the constitutional guarantee of an impartial jury. *45 JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the judgment in part and dissenting in part. For the reasons stated in my opinion in Ross v. Massachusetts, 414 U.S. 1080 (1973) (dissenting from denial of certiorari), I believe that a criminal defendant is entitled to inquire on voir dire about the potential racial bias of jurors whenever the case involves a violent interracial crime. As the Court concedes, "it is plain that there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence." Ante, at 36, n. 8. To my mind that risk plainly outweighs the slight cost of allowing the defendant to choose whether to make an inquiry concerning such possible prejudice. This Court did not identify in Ristaino v. Ross, 424 U.S. 589 (1976), nor does it identify today, any additional burdens that would accompany such a rule. I therefore cannot agree with the Court's continuing rejection of the simple prophylactic rule proposed in Ristaino. Even if I agreed with the Court that a per se rule permitting inquiry into racial bias is appropriate only in capital cases, I could not accept the Court's failure to remedy the denial of such inquiry in this capital case by reversing petitioner's conviction. Henceforth any capital defendant accused of an interracial crime may inquire into racial prejudice on voir dire. When, as here, the same jury sits at the guilt phase and the penalty phase, these defendants will be assured an impartial jury at both phases. Yet petitioner is forced to accept a conviction by what may have been a biased jury. This is an incongruous and fundamentally unfair result. I therefore concur only in the Court's judgment vacating petitioner's sentence, and dissent from the Court's refusal to reverse the conviction as well.

Petitioner is a black man sentenced to death for the murder of a white storekeeper. The question presented is whether the trial judge committed reversible error at voir dire by refusing petitioner's request to question prospective jurors on racial prejudice. I On July 12, 1978, petitioner entered a jewelry store in Franklin, Virginia, armed with a sawed-off shotgun. He demanded that the proprietor, W. Jack Smith, Jr., put jewelry and money from the cash register into some jewelry bags. Smith complied with petitioner's demand, but triggered a *30 silent alarm, alerting the Police Department. When Alan Bain, a police officer, arrived to inquire about the alarm, petitioner surprised him and forced him to surrender his revolver. Having learned that Smith had triggered a silent alarm, petitioner became agitated. He fired toward the rear wall of the store and stated that if he saw or heard any more police officers, he was going to start killing those in the store.[1] When a police siren sounded, petitioner walked to where Smith was stationed behind a counter and without warning shot him in the head with Bain's pistol, wounding Smith and causing him to slump incapacitated to the floor. Officer Bain attempted to calm petitioner, promising to take him anywhere he wanted to go and asking him not to shoot again. Petitioner angrily replied that he was going to kill Smith for "snitching," and fired two pistol shots into Smith's chest, fatally wounding him. As petitioner turned away from shooting Smith, Bain was able to disarm him and place him under arrest. A Southampton County, Virginia, grand jury indicted petitioner on charges of capital murder, use of a firearm in the commission of a murder, and possession of a sawed-off shotgun in the commission of a robbery. Petitioner requested and was granted a change of venue to Northampton County, Virginia, a rural county some 80 miles from the location of the murder. Prior to the commencement of voir dire, petitioner's counsel submitted to the trial judge a list of proposed questions, including the following: " `The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will these facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair *31 and impartial verdict based solely on the evidence?' " The judge declined to ask this question, stating that it "has been ruled on by the Supreme Court."[2] App. 1. The judge did ask the venire, who were questioned in groups of five in petitioner's presence, whether any person was aware of any reason why he could not render a fair and impartial verdict, to which all answered "no." At the time the question was asked, the prospective jurors had no way of knowing that the murder victim was white. The jury that was empaneled, which consisted of eight whites and four blacks, convicted petitioner on all of the charges against him. at 97 and Addendum. After a separate sentencing hearing on the capital charge, the jury recommended that petitioner be sentenced to death, a recommendation the trial judge accepted. Petitioner appealed his death sentence to the Virginia Supreme Court. Among other points, he argued that the trial judge deprived him of his constitutional right to a fair and impartial jury by refusing to question prospective jurors on racial prejudice. The Virginia Supreme Court rejected this argument. Relying on our decision in the court stated that a trial judge's refusal to ask prospective jurors about their racial attitudes, while perhaps not the wisest decision as a matter of policy, is not constitutionally objectionable in the absence of factors akin to those in[3], 273 S. E. *32 2d, at 42. The court held that "[t]he mere fact that a defendant is black and that a victim is white does not constitutionally mandate an inquiry [into racial prejudice]." [4] Having failed in his direct appeal, petitioner sought habeas corpus relief in the Federal District Court for the Eastern District of Virginia. App. 97. Again he argued without success that the trial judge's refusal to ask prospective jurors about their racial attitudes deprived him of his right to a fair trial. The District Court noted that in which involved a crime of interracial violence,[] we held that inquiry into racial prejudice at voir dire was not constitutionally required because the facts of the case " `did not suggest a significant likelihood that racial prejudice might infect [the defendant's] trial.' " App. 103 ( ). The court found the present case like and unlike Ham in that "racial issues [are] not `inextricably bound up with the facts at trial.' " App. 103. The United States Court of Appeals for the Fourth Circuit affirmed the District Court's denial of habeas corpus relief for *33 petitioner. Like the Virginia Supreme Court and the District Court, the Fourth Circuit found no "special circumstances" in this case analogous to those in Ham. The court rejected the idea that "the nature of the crime or punishment itself is a special circumstance." Relying on the court likewise found no special circumstance in the fact that petitioner is black and his victim white.[6] We granted certiorari to review the Fourth Circuit's decision that petitioner was not constitutionally entitled to have potential jurors questioned concerning racial prejudice. We reverse. II The Fourth Circuit's opinion correctly states the analytical framework for evaluating petitioner's argument: "The broad inquiry in each case must be whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as [they stand] unsworne." -346 The Fourth Circuit was correct, too, in holding that under the mere fact that petitioner is black and his victim white does not constitute a "special circumstance" of constitutional proportions. What sets this case apart from however, is that in addition to petitioner's being accused of a crime against a white victim, the crime charged was a capital offense. In a capital sentencing proceeding before a jury, the jury is called upon to make a "highly subjective, `unique, individualized *34 judgment regarding the punishment that a particular person deserves.' " ). The Virginia statute under which petitioner was sentenced is instructive of the kinds of judgments a capital sentencing jury must make. First, in order to consider the death penalty, a Virginia jury must find either that the defendant is likely to commit future violent crimes or that his crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim." Va. Code 19.2-264.2 Second, the jury must consider any mitigating evidence offered by the defendant. Mitigating evidence may include, but is not limited to, facts tending to show that the defendant acted under the influence of extreme emotional or mental disturbance, or that at the time of the crime the defendant's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired." 19.2-262.4(B). Finally, even if the jury has found an aggravating factor, and irrespective of whether mitigating evidence has been offered, the jury has discretion not to recommend the death sentence, in which case it may not be imposed. 19.2-264.2. Virginia's death-penalty statute gives the jury greater discretion than other systems which we have upheld against constitutional challenge. See, e. g., However, our cases establish that every capital sentencer must be free to weigh relevant mitigating evidence before deciding whether to impose the death penalty, see, e. g., ; and that in the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death. *3 Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner's evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror's decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.[7] The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. "The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." We have struck down capital sentences when we found that the circumstances *36 under which they were imposed "created an unacceptable risk that `the death penalty [may have been] meted out arbitrarily or capriciously' or through `whim or mistake.' " (citation omitted). In the present case, we find the risk that racial prejudice may have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized.[8] By refusing to question prospective jurors on racial prejudice, the trial judge failed to adequately protect petitioner's constitutional right to an impartial jury.[9] III We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the *37 race of the victim and questioned on the issue of racial bias.[10] The rule we propose is minimally intrusive; as in other cases involving "special circumstances," the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. See Also, a defendant cannot complain of a judge's failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry. IV The inadequacy of voir dire in this case requires that petitioner's death sentence be vacated. It is not necessary, however, that he be retried on the issue of guilt. Our judgment in this case is that there was an unacceptable risk of racial prejudice infecting the capital sentencing proceeding. This judgment is based on a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case.[11] At the guilt phase of petitioner's trial, the jury had no greater discretion than it would have had if the crime charged had been noncapital murder. Thus, with respect to the guilt phase of petitioner's trial, we find this case *38 to be indistinguishable from to which we continue to adhere.[12] See n. 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. THE CHIEF JUSTICE concurs in the judgment. JUSTICE BRENNAN, concurring in part and dissenting in part. The Court's judgment vacates petitioner's sentence of death while refusing to disturb his conviction. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, 428 U.S. 13, I agree that the death sentence in this case must be vacated. But even if I did not hold that view, I would still find that the sentence was unconstitutionally imposed in this case. In my view, the constitutional right of a defendant to have a trial judge ask the members *39 of the venire questions concerning possible racial bias is triggered whenever a violent interracial crime has been committed. See The reality of race relations in this country is such that we simply may not presume impartiality, and the risk of bias runs especially high when members of a community serving on a jury are to be confronted with disturbing evidence of criminal conduct that is often terrifying and abhorrent. In analyzing the question of when the Constitution requires trial judges to accommodate defendants' requests for inquiries into racial prejudice, I, like the Court, am influenced by what the Court correctly describes as the "ease" with which the risk may be minimized. Ante, at 36. In any event, I cannot fully join either the Court's judgment or opinion. For in my view, the decision in this case, although clearly half right, is even more clearly half wrong. After recognizing that the constitutional guarantee of an impartial jury entitles a defendant in a capital case involving interracial violence to have prospective jurors questioned on the issue of racial bias — a holding which requires that this case be reversed and remanded for new sentencing — the Court disavows the logic of its own reasoning in denying petitioner Turner a new trial on the issue of his guilt. It accomplishes this by postulating a jury role at the sentencing phase of a capital trial fundamentally different from the jury function at the guilt phase and by concluding that the former gives rise to a significantly greater risk of a verdict tainted by racism. Because I believe that the Court's analysis improperly intertwines the significance of the risk of bias with the consequences of bias, and because in my view the distinction between the jury's role at a guilt trial and its role at a sentencing hearing is a distinction without substance in so far as juror bias is concerned, I join only that portion of the Court's judgment granting petitioner a new sentencing proceeding, *40 but dissent from that portion of the judgment refusing to vacate the conviction. The Sixth Amendment guarantees criminal defendants an impartial jury. This is not mere exhortation for it has been noted that "the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial." 32 Among the most important of the means designed to insure an impartial jury is the right to strike those jurors who manifest an inability to try the case solely on the basis of the evidence. This right to exclude incompetent jurors cannot be exercised meaningfully or effectively unless counsel has sufficient information with which to evaluate members of the venire. As JUSTICE WHITE noted for the Court in 41 U.S. 182, "lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts" (footnote omitted). Recognizing this fact, we held long ago that "essential demands of fairness" may require a judge to ask jurors whether they entertain any racial prejudice. ; see also More recently, we attempted to refine the analysis, and declared that when there is a showing of a "likelihood" that racial or ethnic prejudice may affect the jurors, the Constitution requires a trial judge to honor a defendant's request to examine the jurors' ability to deal impartially with the evidence adduced at trial. Rosales-Lopez, Exercising our supervisory powers over the federal courts, we held in Rosales-Lopez that when a violent crime has been committed, and the victim and the accused are of different races, a per se inference of a "reasonable possibility" of prejudice is shown. In the present case, we deal with a criminal case from a state court involving an act of interracial violence, *41 and are faced with the question of what factors and circumstances will elevate this presumptive "reasonable possibility" of prejudice into a constitutionally significant "likelihood" of prejudice. The Court identifies three factors, the "conjunction" of which in its view entitled petitioner Turner as a matter of constitutional right to have the jury questioned on racial bias. These are (1) the fact that the crime committed involved interracial violence; (2) the broad discretion given the jury at the death penalty hearing; and (3) the "special seriousness of the risk of improper sentencing in a capital case." Ante, at 37. I agree with the Court that when these three factors are present, as they were at petitioner's sentencing hearing, the trial court commits constitutional error in refusing a defense request to ask the jurors if the race of either the victim or the accused will bear on their ability to render a decision based solely on the evidence. What I cannot accept is that the judge is released from this obligation to insure an impartial jury — or, to put it another way, that the defendant is stripped of this constitutional safeguard — when a capital jury is hearing evidence concerning a crime involving interracial violence but passing "only" on the issue of guilt/innocence, rather than on the appropriate sentence. The Court's argument is simply untenable on its face. As best I can understand it, the thesis is that since there is greater discretion entrusted to a capital jury in the sentencing phase than in the guilt phase, "there is [in the sentencing hearing] a unique opportunity for racial prejudice to operate but remain undetected." Ante, at 3. However, the Court's own discussion of the issues demonstrates that the opportunity for racial bias to taint the jury process is not "uniquely" present at a sentencing hearing, but is equally a factor at the guilt phase of a bifurcated capital trial. According to the Court, a prejudiced juror sitting at a sentencing hearing might be influenced by his racial bias in deciding whether the crime committed involved aggravating *42 factors specified under state law; the Court notes that racial prejudice might similarly cause that juror to be less favorably inclined toward an accused's evidence of mitigating circumstances. Moreover, the Court informs us: "More subtle, less consciously held racial attitudes could also influence a juror's decision. Fear of blacks, which could easily be stirred up by the violent facts of [a] crime, might incline a juror to favor the death penalty." The flaw in this "analysis" is that there is simply no connection between the proposition advanced, the support proffered for that thesis, and the conclusion drawn. In other words, it is certainly true, as the Court maintains, that racial bias inclines one to disbelieve and disfavor the object of the prejudice, and it is similarly incontestable that subconscious, as well as express, racial fears and hatreds operate to deny fairness to the person despised; that is why we seek to insure that the right to an impartial jury is a meaningful right by providing the defense with the opportunity to ask prospective jurors questions designed to expose even hidden prejudices. But the Court never explains why these biases should be of less concern at the guilt phase than at the sentencing phase. The majority asserts that "a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law." But might not that same juror be influenced by those same prejudices in deciding whether, for example, to credit or discredit white witnesses as opposed to black witnesses at the guilt phase? Might not those same racial fears that would incline a juror to favor death not also incline a juror to favor conviction? A trial to determine guilt or innocence is, at bottom, nothing more than the sum total of a countless number of small discretionary decisions made by each individual who sits in the jury box. The difference between conviction and acquittal *43 turns on whether key testimony is believed or rejected; on whether an alibi sounds plausible or dubious; on whether a character witness appears trustworthy or unsavory; and on whether the jury concludes that the defendant had a motive, the inclination, or the means available to commit the crime charged. A racially biased juror sits with blurred vision and impaired sensibilities and is incapable of fairly making the myriad decisions that each juror is called upon to make in the course of a trial. To put it simply, he cannot judge because he has prejudged. This is equally true at the trial on guilt as at the hearing on sentencing. To sentence an individual to death on the basis of a proceeding tainted by racial bias would violate the most basic values of our criminal justice system. This the Court understands. But what it seems not to comprehend is that to permit an individual to be convicted by a prejudiced jury violates those same values in precisely the same way. The incongruity of the Court's split judgment is made apparent after it is appreciated that the opportunity for bias to poison decisionmaking operates at a guilt trial in the same way as it does at a sentencing hearing and after one returns to the context of the case before us. Implicit in the Court's judgment is the acknowledgment that there was a likelihood that the jury that pronounced the death sentence acted, in part, on the basis of racial prejudice. But the exact same jury convicted Turner. Does the Court really mean to suggest that the constitutional entitlement to an impartial jury attaches only at the sentencing phase? Does the Court really believe that racial biases are turned on and off in the course of one criminal prosecution? My sense is that the Court has confused the consequences of an unfair trial with the risk that a jury is acting on the basis of prejudice. In other words, I suspect that what is really animating the Court's judgment is the sense of outrage it rightly experiences at the prospect of a man being sentenced to death on the basis of the color of his skin. Perhaps *44 the Court is slightly less troubled by the prospect of a racially motivated conviction unaccompanied by the death penalty, and I suppose that if, for some unimaginable reason, I had to choose between the two cases, and could only rectify one, I would remedy the case where death had been imposed. But there is no need to choose between the two cases. To state what seems to me obvious, the constitutional right implicated is the right to be judged by an impartial jury, regardless of the sentence, and the constitutional focus thus belongs on whether there is a likelihood of bias, and not on what flows from that bias. In we reversed the conviction of a young black man who was charged with and convicted of possession of marijuana; because the man was known in the community as a civil rights activist, and because we were persuaded that racial issues were inextricably bound up with the conduct of the trial, we concluded that it was likely that any prejudice that individual members of the jury might harbor would be intensified and held that under those circumstances the trial judge was required to oblige the defense request to inquire into the jury's possible racial bias. We did not reject the petitioner's claim in that case because he was sentenced only to 18 months' imprisonment. Surely one has a right to an impartial jury whether one is subject to punishment for a day or a lifetime. The Court may believe that it is being Solomonic in "splitting the difference" in this case and granting petitioner a new sentencing hearing while denying him the other "half" of the relief demanded. Starkly put, petitioner "wins" in that he gets to be resentenced, while the State "wins" in that it does not lose its conviction. But King Solomon did not, in fact, split the baby in two, and had he done so, I suspect that he would be remembered less for his wisdom than for his hardheartedness. Justice is not served by compromising principles in this way. I would reverse the conviction as well as the sentence in this case to insure compliance with the constitutional guarantee of an impartial jury. *4 JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the judgment in part and dissenting in part. For the reasons stated in my opinion in I believe that a criminal defendant is entitled to inquire on voir dire about the potential racial bias of jurors whenever the case involves a violent interracial crime. As the Court concedes, "it is plain that there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence." Ante, at 36, n. 8. To my mind that risk plainly outweighs the slight cost of allowing the defendant to choose whether to make an inquiry concerning such possible prejudice. This Court did not identify in nor does it identify today, any additional burdens that would accompany such a rule. I therefore cannot agree with the Court's continuing rejection of the simple prophylactic rule proposed in Even if I agreed with the Court that a per se rule permitting inquiry into racial bias is appropriate only in capital cases, I could not accept the Court's failure to remedy the denial of such inquiry in this capital case by reversing petitioner's conviction. Henceforth any capital defendant accused of an interracial crime may inquire into racial prejudice on voir dire. When, as here, the same jury sits at the guilt phase and the penalty phase, these defendants will be assured an impartial jury at both phases. Yet petitioner is forced to accept a conviction by what may have been a biased jury. This is an incongruous and fundamentally unfair result. I therefore concur only in the Court's judgment vacating petitioner's sentence, and dissent from the Court's refusal to reverse the conviction as well.

Justice Thomas

dissenting

PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology

https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/

https://www.courtlistener.com/api/rest/v3/clusters/1087951/

1993-060

The Court today holds that a State, pursuant to § 401 of the Clean Water Act, may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project. In my view, the Court makes three fundamental errors. First, it adopts an interpretation that fails adequately to harmonize the subsections of § 401. Second, it places no meaningful limitation on a State's authority under § 401 to impose conditions on certification. Third, it gives little or no consideration to the fact that its interpretation of § 401 will significantly disrupt the carefully crafted federal-state balance embodied in the Federal Power Act. Accordingly, I dissent. I A Section 401(a)(1) of the Federal Water Pollution Control Act, otherwise known as the Clean Water Act (CWA or Act), 33 U.S. C. § 1251 et seq., provides that "[a]ny applicant for a Federal license or permit to conduct any activity . . . , which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates . . . that any such discharge will comply with . . . applicable provisions of [the CWA]." 33 U.S. C. § 1341(a)(1). The terms of § 401(a)(1) make clear that the purpose of the certification process is to ensure that discharges from a project will meet the requirements of the CWA. Indeed, a State's authority under § 401(a)(1) is limited to certifying that "any discharge" that "may result" from "any activity," such as petitioners' proposed hydroelectric project, will "comply" with the enumerated provisions of the CWA; if the discharge will fail to comply, the State may "den[y]" the certification. Ibid. In addition, under § 401(d), a State may place conditions on a *725 § 401 certification, including "effluent limitations and other limitations, and monitoring requirements," that may be necessary to ensure compliance with various provisions of the CWA and with "any other appropriate requirement of State law." § 1341(d). The minimum stream flow condition imposed by respondents in this case has no relation to any possible "discharge" that might "result" from petitioners' proposed project. The term "discharge" is not defined in the CWA, but its plain and ordinary meaning suggests "a flowing or issuing out," or "something that is emitted." Webster's Ninth New Collegiate Dictionary 360 (1991). Cf. 33 U.S. C. § 1362(16) ("The term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants"). A minimum stream flow requirement, by contrast, is a limitation on the amount of water the project can take in or divert from the river. See ante, at 709. That is, a minimum stream flow requirement is a limitation on intake—the opposite of discharge. Imposition of such a requirement would thus appear to be beyond a State's authority as it is defined by § 401(a)(1). The Court remarks that this reading of § 401(a)(1) would have "considerable force," ante, at 711, were it not for what the Court understands to be the expansive terms of § 401(d). That subsection, as set forth in 33 U.S. C. § 1341(d), provides: "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal *726 license or permit subject to the provisions of this section." (Emphasis added.) According to the Court, the fact that § 401(d) refers to an "applicant," rather than a "discharge," complying with various provisions of the Act "contradicts petitioners' claim that the State may only impose water quality limitations specifically tied to a `discharge.' " Ante, at 711. In the Court's view, § 401(d)'s reference to an applicant's compliance "expands" a State's authority beyond the limits set out in § 401(a)(1), ibid., thereby permitting the State in its certification process to scrutinize the applicant's proposed "activity as a whole," not just the discharges that may result from the activity, ante, at 712. The Court concludes that this broader authority allows a State to impose conditions on a § 401 certification that are unrelated to discharges. Ante, at 711-712. While the Court's interpretation seems plausible at first glance, it ultimately must fail. If, as the Court asserts, § 401(d) permits States to impose conditions unrelated to discharges in § 401 certifications, Congress' careful focus on discharges in § 401(a)(1)—the provision that describes the scope and function of the certification process—was wasted effort. The power to set conditions that are unrelated to discharges is, of course, nothing but a conditional power to deny certification for reasons unrelated to discharges. Permitting States to impose conditions unrelated to discharges, then, effectively eliminates the constraints of § 401(a)(1). Subsections 401(a)(1) and (d) can easily be reconciled to avoid this problem. To ascertain the nature of the conditions permissible under § 401(d), § 401 must be read as a whole. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988) (statutory interpretation is a "holistic endeavor"). As noted above, § 401(a)(1) limits a State's authority in the certification process to addressing concerns related to discharges and to ensuring that any discharge resulting from a project will comply with specified provisions of the Act. It is reasonable *727 to infer that the conditions a State is permitted to impose on certification must relate to the very purpose the certification process is designed to serve. Thus, while § 401(d) permits a State to place conditions on a certification to ensure compliance of the "applicant," those conditions must still be related to discharges. In my view, this interpretation best harmonizes the subsections of § 401. Indeed, any broader interpretation of § 401(d) would permit that subsection to swallow § 401(a)(1). The text of § 401(d) similarly suggests that the conditions it authorizes must be related to discharges. The Court attaches critical weight to the fact that § 401(d) speaks of the compliance of an "applicant," but that reference, in and of itself, says little about the nature of the conditions that may be imposed under § 401(d). Rather, because § 401(d) conditions can be imposed only to ensure compliance with specified provisions of law—that is, with "applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard[s] of performance under section 1316 of this title, . . . prohibition[s], effluent standard[s], or pretreatment standard[s] under section 1317 of this title, [or] . . . any other appropriate requirement[s] of State law"—one should logically turn to those provisions for guidance in determining the nature, scope, and purpose of § 401(d) conditions. Each of the four identified CWA provisions describes dischargerelated limitations. See § 1311 (making it unlawful to discharge any pollutant except in compliance with enumerated provisions of the Act); § 1312 (establishing effluent limitations on point source discharges); § 1316 (setting national standards of performance for the control of discharges); and § 1317 (setting pretreatment effluent standards and prohibiting the discharge of certain effluents except in compliance with standards). The final term on the list—"appropriate requirement[s] of State law"—appears to be more general in scope. Because *728 this reference follows a list of more limited provisions that specifically address discharges, however, the principle ejusdem generis would suggest that the general reference to "appropriate" requirements of state law is most reasonably construed to extend only to provisions that, like the other provisions in the list, impose discharge-related restrictions. Cf. Cleveland v. United States, 329 U.S. 14, 18 (1946) ("Under the ejusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it"); Arcadia v. Ohio Power Co., 498 U.S. 73, 84 (1990). In sum, the text and structure of § 401 indicate that a State may impose under § 401(d) only those conditions that are related to discharges. B The Court adopts its expansive reading of § 401(d) based at least in part upon deference to the "conclusion" of the Environmental Protection Agency (EPA) that § 401(d) is not limited to requirements relating to discharges. Ante, at 712. The agency regulation to which the Court defers is 40 CFR § 121.2(a)(3) (1993), which provides that the certification shall contain "[a] statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." Ante, at 712. According to the Court, "EPA's conclusion that activities —not merely discharges—must comply with state water quality standards . . . is entitled to deference" under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Ante, at 712. As a preliminary matter, the Court appears to resort to deference under Chevron without establishing through an initial examination of the statute that the text of the section is ambiguous. See Chevron, supra, at 842-843. More importantly, the Court invokes Chevron deference to support its interpretation even though the Government does not seek *729 deference for the EPA's regulation in this case.[1] That the Government itself has not contended that an agency interpretation exists reconciling the scope of the conditioning authority under § 401(d) with the terms of § 401(a)(1) should suggest to the Court that there is no "agenc[y] construction" directly addressing the question. Chevron, supra, at 842. In fact, the regulation to which the Court defers is hardly a definitive construction of the scope of § 401(d). On the contrary, the EPA's position on the question whether conditions under § 401(d) must be related to discharges is far from clear. Indeed, the only EPA regulation that specifically addresses the "conditions" that may appear in § 401 certifications speaks exclusively in terms of limiting discharges. According to the EPA, a § 401 certification shall contain "[a] statement of any conditions which the certifying agency deems necessary or desirable with respect to the discharge of the activity. " 40 CFR § 121.2(a)(4) (1993) (emphases added). In my view, § 121.2(a)(4) should, at the very least, give the Court pause before it resorts to Chevron deference in this case. II The Washington Supreme Court held that the State's water quality standards, promulgated pursuant to § 303 of the Act, 33 U.S. C. § 1313, were "appropriate" requirements of state law under § 401(d), and sustained the stream flow condition imposed by respondents as necessary to ensure compliance with a "use" of the river as specified in those standards. As an alternative to their argument that § 401(d) conditions must be discharge related, petitioners assert that *730 the state court erred when it sustained the stream flow condition under the "use" component of the State's water quality standards without reference to the corresponding "water quality criteria" contained in those standards. As explained above, petitioners' argument with regard to the scope of a State's authority to impose conditions under § 401(d) is correct. I also find petitioners' alternative argument persuasive. Not only does the Court err in rejecting that § 303 argument, in the process of doing so it essentially removes all limitations on a State's conditioning authority under § 401. The Court states that, "at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to § 303 are `appropriate' requirements of state law" under § 401(d). Ante, at 713.[2] A water quality standard promulgated pursuant to § 303 must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S. C. § 1313(c)(2)(A). The Court asserts that this language "is most naturally read to require that a project be consistent with both components, namely, the designated use and the water quality criteria." Ante, at 715. In the Court's view, then, the "use" of a body of water is independently enforceable through § 401(d) without reference to the corresponding criteria. Ibid. The Court's reading strikes me as contrary to common sense. It is difficult to see how compliance with a "use" of a body of water could be enforced without reference to the *731 corresponding criteria. In this case, for example, the applicable "use" is contained in the following regulation: "Characteristic uses shall include, but not be limited to, . . . [s]almonid migration, rearing, spawning, and harvesting." Wash. Admin. Code (WAC) XXX-XXX-XXX(1)(b)(iii) (1986). The corresponding criteria, by contrast, include measurable factors such as quantities of fecal coliform organisms and dissolved gases in the water. XXX-XXX-XXX(1)(c)(i) and (ii).[3] Although the Act does not further address (at least not expressly) the link between "uses" and "criteria," the regulations promulgated under § 303 make clear that a "use" is an aspirational goal to be attained through compliance with corresponding "criteria." Those regulations suggest that "uses" are to be "achieved and protected," and that "water quality criteria" are to be adopted to "protect the designated use[s]." 40 CFR §§ 131.10(a), 131.11(a)(1) (1993). The problematic consequences of decoupling "uses" and "criteria" become clear once the Court's interpretation of § 303 is read in the context of § 401. In the Court's view, a State may condition the § 401 certification "upon any limitations necessary to ensure compliance" with the "uses of the water body." Ante, at 713-714, 715 (emphasis added). Under the Court's interpretation, then, state environmental agencies may pursue, through § 401, their water goals in any way they choose; the conditions imposed on certifications need not relate to discharges, nor to water quality criteria, nor to any objective or quantifiable standard, so long as they tend to make the water more suitable for the uses the State has chosen. In short, once a State is allowed to impose conditions on § 401 certifications to protect "uses" in the abstract, § 401(d) is limitless. To illustrate, while respondents in this case focused only on the "use" of the Dosewallips River as a fish habitat, this particular river has a number of other "[c]haracteristic uses," *732 including "[r]ecreation (primary contact recreation, sport fishing, boating, and aesthetic enjoyment)." WAC 173-201-045(1)(b)(v) (1986). Under the Court's interpretation, respondents could have imposed any number of conditions related to recreation, including conditions that have little relation to water quality. In Town of Summersville, 60 FERC ¶ 61,291, p. 61,990 (1992), for instance, the state agency required the applicant to "construct . . . access roads and paths, low water stepping stone bridges, . . . a boat launching facility . . ., and a residence and storage building." These conditions presumably would be sustained under the approach the Court adopts today.[4] In the end, it is difficult to conceive of a condition that would fall outside a State's § 401(d) authority under the Court's approach. III The Court's interpretation of § 401 significantly disrupts the careful balance between state and federal interests that Congress struck in the Federal Power Act (FPA), 16 U.S. C. § 791 et seq. Section 4(e) of the FPA authorizes the Federal Energy Regulatory Commission (FERC) to issue licenses for projects "necessary or convenient . . . for the development, transmission, and utilization of power across, along, from, or in any of the streams . . . over which Congress has jurisdiction." 16 U.S. C. § 797(e). In the licensing process, FERC must balance a number of considerations: "[I]n addition to the power and development purposes for which licenses are issued, [FERC] shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational *733 opportunities, and the preservation of other aspects of environmental quality." Ibid. Section 10(a) empowers FERC to impose on a license such conditions, including minimum stream flow requirements, as it deems best suited for power development and other public uses of the waters. See 16 U.S. C. § 803(a); California v. FERC, 495 U.S. 490, 494-495, 506 (1990). In California v. FERC, the Court emphasized FERC's exclusive authority to set the stream flow levels to be maintained by federally licensed hydroelectric projects. California, in order "to protect [a] stream's fish," had imposed flow rates on a federally licensed project that were significantly higher than the flow rates established by FERC. Id., at 493. In concluding that California lacked authority to impose such flow rates, we stated: "As Congress directed in FPA § 10(a), FERC set the conditions of the [project] license, including the minimum stream flow, after considering which requirements would best protect wildlife and ensure that the project would be economically feasible, and thus further power development. Allowing California to impose significantly higher minimum stream flow requirements would disturb and conflict with the balance embodied in that considered federal agency determination. FERC has indicated that the California requirements interfere with its comprehensive planning authority, and we agree that allowing California to impose the challenged requirements would be contrary to congressional intent regarding the Commission's licensing authority and would constitute a veto of the project that was approved and licensed by FERC." Id., at 506-507 (citations and internal quotation marks omitted). California v. FERC reaffirmed our decision in First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152, 164 (1946), in which we warned against "vest[ing] in [state authorities] *734 a veto power" over federal hydroelectric projects. Such authority, we concluded, could "destroy the effectiveness" of the FPA and "subordinate to the control of the State the `comprehensive' planning" with which the administering federal agency (at that time the Federal Power Commission) was charged. Ibid. Today, the Court gives the States precisely the veto power over hydroelectric projects that we determined in California v. FERC and First Iowa they did not possess. As the language of § 401(d) expressly states, any condition placed in a § 401 certification, including, in the Court's view, a stream flow requirement, "shall become a condition on any Federal license or permit." 33 U.S. C. § 1341(d) (emphasis added). Any condition imposed by a State under § 401(d) thus becomes a "ter[m] . . . of the license as a matter of law," Department of Interior v. FERC, 952 F.2d 538, 548 (CADC 1992) (citation and internal quotation marks omitted), regardless of whether FERC favors the limitation. Because of § 401(d)'s mandatory language, federal courts have uniformly held that FERC has no power to alter or review § 401 conditions, and that the proper forum for review of those conditions is state court.[5] Section 401(d) conditions imposed by States are *735 therefore binding on FERC. Under the Court's interpretation, then, it appears that the mistake of the State in California v. FERC was not that it had trespassed into territory exclusively reserved to FERC; rather, it simply had not hit upon the proper device—that is, the § 401 certification— through which to achieve its objectives. Although the Court notes in passing that "[t]he limitations included in the certification become a condition on any federal license," ante, at 708, it does not acknowledge or discuss the shift of power from FERC to the States that is accomplished by its decision. Indeed, the Court merely notes that "any conflict with FERC's authority under the FPA" in this case is "hypothetical" at this stage, ante, at 723, because "FERC has not yet acted on petitioners' license application," ante, at 722. We are assured that "it is quite possible . . . that any FERC license would contain the same conditions as the state § 401 certification." Ibid. The Court's observations simply miss the point. Even if FERC might have no objection to the stream flow condition established by respondents in this case, such a happy coincidence will likely prove to be the exception, rather than the rule. In issuing licenses, FERC must balance the Nation's power needs together with the need for energy conservation, irrigation, flood control, fish and wildlife protection, and recreation. 16 U.S. C. § 797(e). State environmental agencies, by contrast, need only consider parochial environmental interests. Cf., e. g., Wash. Rev. Code § 90.54.010(2) (1992) (goal of State's water policy is to "insure that waters of the state are protected and fully utilized for the greatest benefit to the people of the state of Washington"). As a result, it is likely that conflicts will arise between a FERC-established stream flow level and a state-imposed level. Moreover, the Court ignores the fact that its decision nullifies the congressionally mandated process for resolving such state-federal disputes when they develop. Section 10(j)(1) of the FPA, 16 U.S. C. § 803(j)(1), which was added as part *736 of the Electric Consumers Protection Act of 1986 (ECPA), 100 Stat. 1244, provides that every FERC license must include conditions to "protect, mitigate damag[e] to, and enhance" fish and wildlife, including "related spawning grounds and habitat," and that such conditions "shall be based on recommendations" received from various agencies, including state fish and wildlife agencies. If FERC believes that a recommendation from a state agency is inconsistent with the FPA—that is, inconsistent with what FERC views as the proper balance between the Nation's power needs and environmental concerns—it must "attempt to resolve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities" of the state agency. § 803(j)(2). If, after such an attempt, FERC "does not adopt in whole or in part a recommendation of any [state] agency," it must publish its reasons for rejecting that recommendation. Ibid. After today's decision, these procedures are a dead letter with regard to stream flow levels, because a State's "recommendation" concerning stream flow "shall" be included in the license when it is imposed as a condition under § 401(d). More fundamentally, the 1986 amendments to the FPA simply make no sense in the stream flow context if, in fact, the States already possessed the authority to establish minimum stream flow levels under § 401(d) of the CWA, which was enacted years before those amendments. Through the ECPA, Congress strengthened the role of the States in establishing FERC conditions, but it did not make that authority paramount. Indeed, although Congress could have vested in the States the final authority to set stream flow conditions, it instead left that authority with FERC. See California v. FERC, 495 U. S., at 499. As the Ninth Circuit observed in the course of rejecting California's effort to give California v. FERC a narrow reading, "[t]here would be no point in Congress requiring [FERC] to consider the state agency recommendations on environmental matters and *737 make its own decisions about which to accept, if the state agencies had the power to impose the requirements themselves." Sayles Hydro Associates v. Maughan, 985 F.2d 451, 456 (1993). Given the connection between § 401 and federal hydroelectric licensing, it is remarkable that the Court does not at least attempt to fit its interpretation of § 401 into the larger statutory framework governing the licensing process. At the very least, the significant impact the Court's ruling is likely to have on that process should compel the Court to undertake a closer examination of § 401 to ensure that the result it reaches was mandated by Congress. IV Because the Court today fundamentally alters the federal-state balance Congress carefully crafted in the FPA, and because such a result is neither mandated nor supported by the text of § 401, I respectfully dissent.

The Court today holds that a State, pursuant to 401 of the Clean Water Act, may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project. In my view, the Court makes three fundamental errors. First, it adopts an interpretation that fails adequately to harmonize the subsections of 401. Second, it places no meaningful limitation on a State's authority under 401 to impose conditions on certification. Third, it gives little or no consideration to the fact that its interpretation of 401 will significantly disrupt the carefully crafted federal-state balance embodied in the Federal Power Act. Accordingly, I dissent. I A Section 401(a)(1) of the Federal Water Pollution Control Act, otherwise known as the Clean Water Act (CWA or Act), 33 U.S. C. 1251 et seq., provides that "[a]ny applicant for a Federal license or permit to conduct any activity which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates that any such discharge will comply with applicable provisions of [the CWA]." 33 U.S. C. 1341(a)(1). The terms of 401(a)(1) make clear that the purpose of the certification process is to ensure that discharges from a project will meet the requirements of the CWA. Indeed, a State's authority under 401(a)(1) is limited to certifying that "any discharge" that "may result" from "any activity," such as petitioners' proposed hydroelectric project, will "comply" with the enumerated provisions of the CWA; if the discharge will fail to comply, the State may "den[y]" the certification. In addition, under 401(d), a State may place conditions on a *725 401 certification, including "effluent limitations and other limitations, and monitoring requirements," that may be necessary to ensure compliance with various provisions of the CWA and with "any other appropriate requirement of State law." 1341(d). The minimum stream flow condition imposed by respondents in this case has no relation to any possible "discharge" that might "result" from petitioners' proposed project. The term "discharge" is not defined in the CWA, but its plain and ordinary meaning suggests "a flowing or issuing out," or "something that is emitted." Webster's Ninth New Collegiate Dictionary 360 (1991). Cf. 33 U.S. C. 1362(16) ("The term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants"). A minimum stream flow requirement, by contrast, is a limitation on the amount of water the project can take in or divert from the river. See ante, at 709. That is, a minimum stream flow requirement is a limitation on intake—the opposite of discharge. Imposition of such a requirement would thus appear to be beyond a State's authority as it is defined by 401(a)(1). The Court remarks that this reading of 401(a)(1) would have "considerable force," ante, at 711, were it not for what the Court understands to be the expansive terms of 401(d). That subsection, as set forth in 33 U.S. C. 1341(d), provides: "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal *726 license or permit subject to the provisions of this section." (Emphasis added.) According to the Court, the fact that 401(d) refers to an "applicant," rather than a "discharge," complying with various provisions of the Act "contradicts petitioners' claim that the State may only impose water quality limitations specifically tied to a `discharge.' " Ante, at 711. In the Court's view, 401(d)'s reference to an applicant's compliance "expands" a State's authority beyond the limits set out in 401(a)(1), ibid., thereby permitting the State in its certification process to scrutinize the applicant's proposed "activity as a whole," not just the discharges that may result from the activity, ante, at 712. The Court concludes that this broader authority allows a State to impose conditions on a 401 certification that are unrelated to discharges. Ante, at 711-712. While the Court's interpretation seems plausible at first glance, it ultimately must fail. If, as the Court asserts, 401(d) permits States to impose conditions unrelated to discharges in 401 certifications, Congress' careful focus on discharges in 401(a)(1)—the provision that describes the scope and function of the certification process—was wasted effort. The power to set conditions that are unrelated to discharges is, of course, nothing but a conditional power to deny certification for reasons unrelated to discharges. Permitting States to impose conditions unrelated to discharges, then, effectively eliminates the constraints of 401(a)(1). Subsections 401(a)(1) and (d) can easily be reconciled to avoid this problem. To ascertain the nature of the conditions permissible under 401(d), 401 must be read as a whole. See United Sav. Assn. of As noted above, 401(a)(1) limits a State's authority in the certification process to addressing concerns related to discharges and to ensuring that any discharge resulting from a project will comply with specified provisions of the Act. It is reasonable *727 to infer that the conditions a State is permitted to impose on certification must relate to the very purpose the certification process is designed to serve. Thus, while 401(d) permits a State to place conditions on a certification to ensure compliance of the "applicant," those conditions must still be related to discharges. In my view, this interpretation best harmonizes the subsections of 401. Indeed, any broader interpretation of 401(d) would permit that subsection to swallow 401(a)(1). The text of 401(d) similarly suggests that the conditions it authorizes must be related to discharges. The Court attaches critical weight to the fact that 401(d) speaks of the compliance of an "applicant," but that reference, in and of itself, says little about the nature of the conditions that may be imposed under 401(d). Rather, because 401(d) conditions can be imposed only to ensure compliance with specified provisions of law—that is, with "applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard[s] of performance under section 1316 of this title, prohibition[s], effluent standard[s], or pretreatment standard[s] under section 1317 of this title, [or] any other appropriate requirement[s] of State law"—one should logically turn to those provisions for guidance in determining the nature, scope, and purpose of 401(d) conditions. Each of the four identified CWA provisions describes dischargerelated limitations. See 1311 (making it unlawful to discharge any pollutant except in compliance with enumerated provisions of the Act); 1312 (establishing effluent limitations on point source discharges); 1316 (setting national standards of performance for the control of discharges); and 1317 (setting pretreatment effluent standards and prohibiting the discharge of certain effluents except in compliance with standards). The final term on the list—"appropriate requirement[s] of State law"—appears to be more general in scope. Because *728 this reference follows a list of more limited provisions that specifically address discharges, however, the principle ejusdem generis would suggest that the general reference to "appropriate" requirements of state law is most reasonably construed to extend only to provisions that, like the other provisions in the list, impose discharge-related restrictions. Cf. ; In sum, the text and structure of 401 indicate that a State may impose under 401(d) only those conditions that are related to discharges. B The Court adopts its expansive reading of 401(d) based at least in part upon deference to the "conclusion" of the Environmental Protection Agency (EPA) that 401(d) is not limited to requirements relating to discharges. Ante, at 712. The agency regulation to which the Court defers is 40 CFR 121.2(a)(3) which provides that the certification shall contain "[a] statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." Ante, at 712. According to the Court, "EPA's conclusion that activities —not merely discharges—must comply with state water quality standards is entitled to deference" under U. S. A. (19). Ante, at 712. As a preliminary matter, the Court appears to resort to deference under without establishing through an initial examination of the statute that the text of the section is ambiguous. See at 2-3. More importantly, the Court invokes deference to support its interpretation even though the Government does not seek *729 deference for the EPA's regulation in this case.[1] That the Government itself has not contended that an agency interpretation exists reconciling the scope of the conditioning authority under 401(d) with the terms of 401(a)(1) should suggest to the Court that there is no "agenc[y] construction" directly addressing the question. at 2. In fact, the regulation to which the Court defers is hardly a definitive construction of the scope of 401(d). On the contrary, the EPA's position on the question whether conditions under 401(d) must be related to discharges is far from clear. Indeed, the only EPA regulation that specifically addresses the "conditions" that may appear in 401 certifications speaks exclusively in terms of limiting discharges. According to the EPA, a 401 certification shall contain "[a] statement of any conditions which the certifying agency deems necessary or desirable with respect to the discharge of the activity. " 40 CFR 121.2(a)(4) In my view, 121.2(a)(4) should, at the very least, give the Court pause before it resorts to deference in this case. II The Washington Supreme Court held that the State's water quality standards, promulgated pursuant to 303 of the Act, 33 U.S. C. 1313, were "appropriate" requirements of state law under 401(d), and sustained the stream flow condition imposed by respondents as necessary to ensure compliance with a "use" of the river as specified in those standards. As an alternative to their argument that 401(d) conditions must be discharge related, petitioners assert that *730 the state court erred when it sustained the stream flow condition under the "use" component of the State's water quality standards without reference to the corresponding "water quality criteria" contained in those standards. As explained above, petitioners' argument with regard to the scope of a State's authority to impose conditions under 401(d) is correct. I also find petitioners' alternative argument persuasive. Not only does the Court err in rejecting that 303 argument, in the process of doing so it essentially removes all limitations on a State's conditioning authority under 401. The Court states that, "at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to 303 are `appropriate' requirements of state law" under 401(d). Ante, at 713.[2] A water quality standard promulgated pursuant to 303 must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S. C. 1313(c)(2)(A). The Court asserts that this language "is most naturally read to require that a project be consistent with both components, namely, the designated use and the water quality criteria." Ante, at 715. In the Court's view, then, the "use" of a body of water is independently enforceable through 401(d) without reference to the corresponding criteria. The Court's reading strikes me as contrary to common sense. It is difficult to see how compliance with a "use" of a body of water could be enforced without reference to the *731 corresponding criteria. In this case, for example, the applicable "use" is contained in the following regulation: "Characteristic uses shall include, but not be limited to, [s]almonid migration, rearing, spawning, and harvesting." Wash. Admin. Code (WAC) XXX-XXX-XXX(1)(b)(iii) (1986). The corresponding criteria, by contrast, include measurable factors such as quantities of fecal coliform organisms and dissolved gases in the water. XXX-XXX-XXX(1)(c)(i) and (ii).[3] Although the Act does not further address (at least not expressly) the link between "uses" and "criteria," the regulations promulgated under 303 make clear that a "use" is an aspirational goal to be attained through compliance with corresponding "criteria." Those regulations suggest that "uses" are to be "achieved and protected," and that "water quality criteria" are to be adopted to "protect the designated use[s]." 40 CFR 131.10(a), 131.11(a)(1) The problematic consequences of decoupling "uses" and "criteria" become clear once the Court's interpretation of 303 is read in the context of 401. In the Court's view, a State may condition the 401 certification "upon any limitations necessary to ensure compliance" with the "uses of the water body." Ante, at 713-714, 715 (emphasis added). Under the Court's interpretation, then, state environmental agencies may pursue, through 401, their water goals in any way they choose; the conditions imposed on certifications need not relate to discharges, nor to water quality criteria, nor to any objective or quantifiable standard, so long as they tend to make the water more suitable for the uses the State has chosen. In short, once a State is allowed to impose conditions on 401 certifications to protect "uses" in the abstract, 401(d) is limitless. To illustrate, while respondents in this case focused only on the "use" of the Dosewallips River as a fish habitat, this particular river has a number of other "[c]haracteristic uses," *732 including "[r]ecreation (primary contact recreation, sport fishing, boating, and aesthetic enjoyment)." WAC 173-201-045(1)(b)(v) (1986). Under the Court's interpretation, respondents could have imposed any number of conditions related to recreation, including conditions that have little relation to water quality. In Town of Summersville, for instance, the state agency required the applicant to "construct access roads and paths, low water stepping stone bridges, a boat launching facility, and a residence and storage building." These conditions presumably would be sustained under the approach the Court adopts today.[4] In the end, it is difficult to conceive of a condition that would fall outside a State's 401(d) authority under the Court's approach. III The Court's interpretation of 401 significantly disrupts the careful balance between state and federal interests that Congress struck in the Federal Power Act (FPA), 16 U.S. C. 791 et seq. Section 4(e) of the FPA authorizes the Federal Energy Regulatory Commission () to issue licenses for projects "necessary or convenient for the development, transmission, and utilization of power across, along, from, or in any of the streams over which Congress has jurisdiction." 16 U.S. C. 797(e). In the licensing process, must balance a number of considerations: "[I]n addition to the power and development purposes for which licenses are issued, [] shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational *733 opportunities, and the preservation of other aspects of environmental quality." Section 10(a) empowers to impose on a license such conditions, including minimum stream flow requirements, as it deems best suited for power development and other public uses of the waters. See 16 U.S. C. 803(a); In the Court emphasized 's exclusive authority to set the stream flow levels to be maintained by federally licensed hydroelectric projects. California, in order "to protect [a] stream's fish," had imposed flow rates on a federally licensed project that were significantly higher than the flow rates established by In concluding that California lacked authority to impose such flow rates, we stated: "As Congress directed in FPA 10(a), set the conditions of the [project] license, including the minimum stream flow, after considering which requirements would best protect wildlife and ensure that the project would be economically feasible, and thus further power development. Allowing California to impose significantly higher minimum stream flow requirements would disturb and conflict with the balance embodied in that considered federal agency determination. has indicated that the California requirements interfere with its comprehensive planning authority, and we agree that allowing California to impose the challenged requirements would be contrary to congressional intent regarding the Commission's licensing authority and would constitute a veto of the project that was approved and licensed by" reaffirmed our decision in First Iowa Hydro-Electric in which we warned against "vest[ing] in [state authorities] *734 a veto power" over federal hydroelectric projects. Such authority, we concluded, could "destroy the effectiveness" of the FPA and "subordinate to the control of the State the `comprehensive' planning" with which the administering federal agency (at that time the Federal Power Commission) was charged. Today, the Court gives the States precisely the veto power over hydroelectric projects that we determined in and First Iowa they did not possess. As the language of 401(d) expressly states, any condition placed in a 401 certification, including, in the Court's view, a stream flow requirement, "shall become a condition on any Federal license or permit." 33 U.S. C. 1341(d) (emphasis added). Any condition imposed by a State under 401(d) thus becomes a "ter[m] of the license as a matter of law," Department of regardless of whether favors the limitation. Because of 401(d)'s mandatory language, federal courts have uniformly held that has no power to alter or review 401 conditions, and that the proper forum for review of those conditions is state court.[5] Section 401(d) conditions imposed by States are *735 therefore binding on Under the Court's interpretation, then, it appears that the mistake of the State in was not that it had trespassed into territory exclusively reserved to ; rather, it simply had not hit upon the proper device—that is, the 401 certification— through which to achieve its objectives. Although the Court notes in passing that "[t]he limitations included in the certification become a condition on any federal license," ante, at 708, it does not acknowledge or discuss the shift of power from to the States that is accomplished by its decision. Indeed, the Court merely notes that "any conflict with 's authority under the FPA" in this case is "hypothetical" at this stage, ante, at 723, because " has not yet acted on petitioners' license application," ante, at 722. We are assured that "it is quite possible that any license would contain the same conditions as the state 401 certification." The Court's observations simply miss the point. Even if might have no objection to the stream flow condition established by respondents in this case, such a happy coincidence will likely prove to be the exception, rather than the rule. In issuing licenses, must balance the Nation's power needs together with the need for energy conservation, irrigation, flood control, fish and wildlife protection, and recreation. 16 U.S. C. 797(e). State environmental agencies, by contrast, need only consider parochial environmental interests. Cf., e. g., Wash. Rev. Code 90.54.010(2) As a result, it is likely that conflicts will arise between a -established stream flow level and a state-imposed level. Moreover, the Court ignores the fact that its decision nullifies the congressionally mandated process for resolving such state-federal disputes when they develop. Section 10(j)(1) of the FPA, 16 U.S. C. 803(j)(1), which was added as part *736 of the Electric Consumers Protection Act of 1986 (ECPA), provides that every license must include conditions to "protect, mitigate damag[e] to, and enhance" fish and wildlife, including "related spawning grounds and habitat," and that such conditions "shall be based on recommendations" received from various agencies, including state fish and wildlife agencies. If believes that a recommendation from a state agency is inconsistent with the FPA—that is, inconsistent with what views as the proper balance between the Nation's power needs and environmental concerns—it must "attempt to resolve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities" of the state agency. 803(j)(2). If, after such an attempt, "does not adopt in whole or in part a recommendation of any [state] agency," it must publish its reasons for rejecting that recommendation. After today's decision, these procedures are a dead letter with regard to stream flow levels, because a State's "recommendation" concerning stream flow "shall" be included in the license when it is imposed as a condition under 401(d). More fundamentally, the 1986 amendments to the FPA simply make no sense in the stream flow context if, in fact, the States already possessed the authority to establish minimum stream flow levels under 401(d) of the CWA, which was enacted years before those amendments. Through the ECPA, Congress strengthened the role of the States in establishing conditions, but it did not make that authority paramount. Indeed, although Congress could have vested in the States the final authority to set stream flow conditions, it instead left that authority with See As the Ninth Circuit observed in the course of rejecting California's effort to give a narrow reading, "[t]here would be no point in Congress requiring [] to consider the state agency recommendations on environmental matters and *737 make its own decisions about which to accept, if the state agencies had the power to impose the requirements themselves." Sayles Hydro Given the connection between 401 and federal hydroelectric licensing, it is remarkable that the Court does not at least attempt to fit its interpretation of 401 into the larger statutory framework governing the licensing process. At the very least, the significant impact the Court's ruling is likely to have on that process should compel the Court to undertake a closer examination of 401 to ensure that the result it reaches was mandated by Congress. IV Because the Court today fundamentally alters the federal-state balance Congress carefully crafted in the FPA, and because such a result is neither mandated nor supported by the text of 401, I respectfully dissent.

Justice Scalia

dissenting

Lawrence v. Chater

https://www.courtlistener.com/opinion/117987/lawrence-v-chater/

https://www.courtlistener.com/api/rest/v3/clusters/117987/

1995-013

[*] I dissent because I believe that the dispositions in both No. 94-8988, post, p. 193, and No. 94-9323, ante, p. 163, are improper extensions of our limited power to vacate without first finding error below. It sometimes occurs that, after having considered the lower court decision and found error, an appellate court merely reverses or vacates and then remands—that is, it sets the judgment aside and sends the case back to the lower court for further proceedings, rather than entering or directing entry of judgment for the appellant or petitioner. That is the appropriate course whenever the finding of error does not automatically entitle the appellant or petitioner to judgment, and the appellate court cannot conduct (or chooses not to conduct) the further inquiry necessary to resolve the questions *178 remaining in the litigation. Our books are full of such cases, from Glass v. Sloop Betsey, 3 Dall. 6 (1794), and Clarke v. Russel, 3 Dall. 415 (1799), to Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), and Tuggle v. Netherland, ante, p. 10. What is at issue here, however, is a different sort of creature, which might be called "no-fault V&R": vacation of a judgment and remand without any determination of error in the judgment below. In our discretionary certiorari system of review, such an order has acquired the acronym "GVR"— for the Court grants certiorari, vacates the judgment below, and remands for further proceedings.[1] The question presented by today's cases is whether there is any limitation (other than the mandate "do what is fair") upon this practice. The Court's per curiam opinions answer "no"; I disagree. Title 28 U.S. C. § 2106 provides that "[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." This facially unlimited statutory text is subject to the implicit limitations imposed by traditional practice and by the nature of the appellate system created by the Constitution and laws of the United States. The inferior federal courts (to say nothing of state courts) are not the creatures *179 and agents of this body—as are masters, whose work we may reject and send back for redoing at our own pleasure. Inferior courts are separately authorized in the Constitution, see Art. I, § 8; Art. III, § 1, created by Acts of Congress, see, e. g., Judiciary Act of 1789, 1 Stat. 73; Evarts Act, Act of Mar. 3, 1891, 26 Stat. 826, and staffed by judges whose manner of appointment and tenure of office are the same as our own, see U. S. Const., Art. II, § 2; Art. III, § 1; 28 U.S. C. §§ 44, 133, 134. Despite the unqualified language of § 2106, we cannot, for example, "reverse" a judgment of one of these courts "and direct the entry" of a different judgment whenever we disagree with what has been done, but only when we can identify a controlling error of law. And I think we cannot "vacate" and "remand" in the circumstances here. The Court today seeks to portray our no-fault V&R practice as traditionally covering a kaleidoscopic diversity of situations. See Lawrence v. Chater, ante, at 166-167. That is in my view a misportrayal; the practice has always been limited to a few discrete categories of cases. It began, apparently, in situations calling forth the special deference owed to state law and state courts in our system of federalism. In Missouri ex rel. Wabash R. Co. v. Public Serv. Comm'n, 273 U.S. 126 (1927), for example, rather than find error on the basis of the federal constitutional claims raised, this Court set aside the judgment of the Missouri Supreme Court and remanded the case to that court for further proceedings so that it could consider the meaning and effect of a state statute that had been enacted after its judgment had been entered. We reasoned that "[w]hile this Court may decide these [state-law] questions, it is not obliged to do so, and in view of their nature, we deem it appropriate to refer the determination to the state court." Id. , at 131. In other words, we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves, see, e. g., Steamship Co. v. Joliffe, 2 Wall. 450, 456-458 (1865). See generally United *180 States v. Schooner Peggy, 1 Cranch 103, 110 (1801) ("If, subsequent to the judgment [entered by a lower court], and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied."). Later cases took the same deferential approach to state courts when the intervening event consisted of one of our own opinions. See, e. g., State Tax Comm'n v. Van Cott, 306 U.S. 511 (1939). By 1945, we could state that it was "[a] customary procedure" for the Court "to vacate the judgment of [a] state court where there has been a supervening event since its rendition which alters the basis upon which the judgment rests, and to remand the case so that the court from which it came might reconsider the question in light of the changed circumstances." State Farm Mut. Automobile Ins. Co. v. Duel, 324 U.S. 154, 161 (1945). Similarly, where a federal court of appeals' decision on a point of state law had been cast in doubt by an intervening state supreme court decision, it became our practice to vacate and remand so that the question could be decided by judges "familiar with the intricacies and trends of local law and practice." Huddleston v. Dwyer, 322 U.S. 232, 237 (1944). The "intervening event" branch of our no-fault V&R practice has been extended to the seemingly analogous situation (though not one implicating the special needs of federalism) in which an intervening event (ordinarily a postjudgment decision of this Court) has cast doubt on the judgment rendered by a lower federal court or a state court concerning a federal question. See, e. g., Amer v. Superior Court of Cal., County of Los Angeles, 334 U.S. 813 (1948); Goldbaum v. United States, 348 U.S. 905 (1955); Henry v. City of Rock Hill, 376 U.S. 776 (1964). This is undoubtedly the largest category of "GVRs" that now exists. See, e. g., Exxon Corp. v. Youell, post, p. 801; Kapoor v. United States, post, p. 801; Edmond v. United States, post, p. 802; Pacesetter Constr. Co. v. Carpenters 46 Northern Cal. Ctys. Conference Bd., post, p. 802; Doctor's Associates, Inc. v. Casarotto, 515 U.S. 1129 *181 (1995); Calamia v. Singletary, 514 U.S. 1124 (1995). We regularly hold cases that involve the same issue as a case on which certiorari has been granted and plenary review is being conducted in order that (if appropriate) they may be "GVR'd" when the case is decided. More recently, we have indulged in the practice of vacating and remanding in light of a decision of ours that preceded the judgment in question, but by so little time that the lower court might have been unaware of it. See, e. g., Grier v. United States, 419 U.S. 989 (1974). These applications of no-fault V&R have nothing to do with federalism, but they are appropriate to preserve the operational premise of a multitiered judicial system (viz., that lower courts will have the first opportunity to apply the governing law to the facts) and to avoid the unseemliness of holding judgments to be in error on the basis of law that did not exist when the judgments were rendered below. They thus serve the interests of efficiency and of concern for the dignity of state and lower federal tribunals. An entirely separate branch of our no-fault V&R jurisprudence, but again one that originates in the special needs of federalism, pertains to decisions of state supreme courts that are ambiguous as to whether they rest on state-law or federal-law grounds. Rather than run the risk of improperly reversing a judgment based on state law, we adopted the practice of vacating and remanding so that the state court could make the reasons for its judgment clear. See, e. g., Minnesota v. National Tea Co., 309 U.S. 551 (1940); Department of Mental Hygiene of Cal. v. Kirchner, 380 U.S. 194 (1965).[2] *182 We have GVR'd with increasing frequency in recent years on the basis of suggestions or representations made by the Solicitor General. Some of these cases are nothing more than examples of the "intervening-event GVR" discussed above, the Solicitor General pointing out that a case or statute has intervened since the judgment below. See, e. g., Woods v. Durr, 336 U.S. 941 (1949); Altiere v. United States, 382 U.S. 367 (1966). We have also announced no-fault GVR's, however, when there has been no intervening development other than the Solicitor General's confession of error in the judgment. That is a relatively new practice. As recently as 1942 a unanimous Court (two Justices not participating) wrote the following: "The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. . . . Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of the parties. . . ." Young v. United States, 315 U.S. 257, 258-259 (1942). Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) (setting aside of a valid judicial judgment should not turn upon agreement of the parties). Many of the early GVR's based upon the Government's confession of error appear not to have been no-fault V&R's at all, but rather summary decisions on the merits, with remand for further proceedings. See, e. g., Chiarella v. United States, 341 U.S. 946 (1951) ("[u]pon consideration of the record and *183 the confession of error by the Solicitor General," remanding to the District Court for resentencing) (emphasis added); Penner v. United States, 399 U.S. 522 (1970) ("[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record," remanding to the District Court "with instructions to dismiss the indictment"). Our recent practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to the lower court to decide if the confession is correct. As late as 1981, the current Chief Justice, joined by Justice White, objected to this practice. See Mariscal v. United States, 449 U.S. 405, 407 (1981) (Rehnquist, J., dissenting) ("I harbor serious doubt that our adversary system of justice is well served by . . . routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own"). I agree with that position. The practice is by now well entrenched, however. See, e. g., Reed v. United States, 510 U.S. 1188 (1994); Ramirez v. United States, 510 U.S. 1103 (1994). It may be considered a separate category of no-fault V&R. Finally (and most questionably) we have in very recent years GVR'd where the Solicitor General has not conceded error in the judgment below, but has merely acknowledged that the ground, or one of the grounds, on which the lower court relied was mistaken. See, e. g., Alvarado v. United States, 497 U.S. 543 (1990); Chappell v. United States, 494 U.S. 1075 (1990). That is in my view a mistaken practice, since we should not assume that a court of appeals has adopted a legal position only because the Government supported it. Four Justices now sitting on the Court have disapproved this sort of GVR. See Alvarado, supra, at 545 (Rehnquist, C. J., joined by O'Connor, Scalia, and Kennedy, JJ., dissenting).[3] *184 Today's cases come within none of these categories of nofault V&R, not even the questionable last one. In Stutson v. United States, post, p. 193, the decision "in light of" which we vacate the judgment and remand, Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), had been on the books for well more than a year before the Eleventh Circuit announced the judgment under review, and for almost two years before that court denied rehearing. Moreover, the parties specifically argued to the Court of Appeals the question whether Pioneer established the standard applicable to petitioner's claim of "excusable neglect" under Federal Rule of Appellate Procedure 4(b), with the United States disagreeing with petitioner and taking the position that Pioneer was not controlling. The Eleventh Circuit ruled against petitioner on the merits of his claim; its one-sentence order contained neither a reference to Pioneer nor any suggestion that the court viewed the case as turning on which party's proffered standard was applied. The United States has now revised its legal position and— though it makes no suggestion that the Court of Appeals' judgment was incorrect—is of the view that Pioneer does establish the standard governing petitioner's claim. But the fact that the party who won below repudiates on certiorari its position on a particular point of law does not give rise to any "intervening," postjudgment factor that must be considered. The law is the law, whatever the parties, including the United States, may have argued. As described above, *185 we have sometimes GVR'd where the Government has, while still supporting the judgment in its favor, conceded the error of a legal point on which the lower court explicitly relied. As I have explained, see supra, at 183, in my view even that practice denies valid judgments the respect to which they are entitled. But the GVR in the present case goes still further. We do not know in this case whether the Eleventh Circuit even agreed with the Government's position that has now been repudiated; for all we know, the court applied Pioneer and found against petitioner under that standard. The judgment is declared invalid because the Eleventh Circuit might (or might not) have relied on a standard (non-Pioneer ) that might (or might not) be wrong, that might (or might not) have affected the outcome, and that the Eleventh Circuit might (or might not) abandon (whether or not it is wrong) because the Government has now abandoned it. This seems to me beyond all reason. The Court justifies its setting aside of the judgment on the ground that "we [do not] place an excessive burden on [the Eleventh Circuit], relative to [petitioner's] liberty and due process interests, by inviting it to clarify its ambiguous ruling." Stutson, post, at 196. Vacating for ambiguity may be justifiable, as I have noted, when the ambiguity calls into question our very power to take and decide the case, see supra, at 181, and n. 2. But where that power is (as it is here) beyond doubt, it seems to me quite improper to vacate merely in order to get a better idea of whether the case is "worth" granting full review. If this is appropriate with respect to court of appeals' summary dispositions of criminal cases, I see no reason why it is not appropriate with respect to criminal dispositions accompanied by opinions as well. Or, for that matter, why it is not appropriate for civil cases. "GVR'd for clarification of ———" should become a common form of order, drastically altering the role of this Court. In my view we have no power to make such a tutelary remand, *186 as to a schoolboy made to do his homework again.[4] The Court insists that declining to remand for clarification would risk "immunizing summary dispositions . . . from our review," Stutson, post, at 196. That is not so. It is fully within our power to review this case, and any other case summarily decided below, by granting certiorari and proceeding to consider the merits; or indeed, where the circumstances warrant, to summarily reverse. Cf. Hellman, "Granted, Vacated, and Remanded"—Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 391-392 (1984) (noting that in the 1970's as the Court's GVR practice "increased far beyond what ithad been in earlier years," its use of summary reversal based on intervening precedents decreased dramatically). In No. 94-9323, the Court again GVR's because the Government has changed a legal position: The Commissioner of Social Security informs us that she now agrees with petitioner on a preliminary point of law that the Court of Appeals found in the Government's favor. And here again, respondent does not concede that the judgment below was in error, for she "ha[s] not . . . reached a firm conclusion" as to her position on the subsequent point of law that will (if her recantation on the preliminary point is accepted) control the outcome of the case. Brief for Respondent in No. 94-9323, p. 13.[5] There is, however, a special factor in this second case: Respondent is an agency head, whose view on the legal point in question is in some circumstances entitled to deference, *187 see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If it were clear that respondent's change in position were entitled to deference, I would have no problem with the GVR; the new position would then constitute an intervening postjudgment factor whose effect the Court of Appeals should be allowed to consider. But even if we allow deference to an agency view first expressed in pending litigation (as some think we should not, see Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. Reg. 1, 60-61 (1990); cf. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a decent concern for those litigating against the Government and for our lower court judges should induce us to disregard, for Chevron purposes, a litigating position first expressed at the certiorari stage. The United States is the most frequent, and hence the most calculating, of our litigants. If we accord deference in the circumstances here, we can expect the Government to take full advantage of the opportunity to wash out, on certiorari, disadvantageous positions it has embraced below; and we can expect it to focus less of its energy upon getting its position "right" in the courts of appeals. The Court, however, thinks it unnecessary to decide the deference question. It is enough, as the Court sees it, that its summary review has led it to "believe that [the] agency interpretation is reasonably probably entitled to deference and potentially determinative." Ante, at 172. I do not agree. It seems to me our "intervening-event GVR's" should not be extended to the situation where (1) the intervening event consists of a party's going back on what it argued to the court of appeals, and (2) it is not even certain that the change in position is legally cognizable. That seems to me to accord inadequate respect to the work of our colleagues below. Moreover, it is not clear to me that the question before us (should an agency change of position at the certiorari stage be accorded deference?) can even be reached *188 by the Court of Appeals. Surely we do not expect the Court of Appeals to declare our vacation and remand invalid. Thus, the Court of Appeals will have before it the somewhat different question whether the agency change of position before it is entitled to deference. I suppose it may conclude that, since a change of position on certiorari is not entitled to deference, a change of position on a remand triggered by change of position on certiorari is not entitled to deference— but that would assuredly be a convoluted holding. The question of what is permissible on certiorari seems to me peculiarly within the domain of this Court. Since we are in doubt on the deference point in the present case, we should either deny the petition, or grant it and have the deference point argued. The Court's failure to comprehend why it should make any difference that the Government's changed litigating position may not be entitled to deference, see ante, at 172-173, displays a lamentable lack of appreciation of the concept of adding insult to injury. It is disrespectful enough of a lower court to set its considered judgment aside because the Government has altered the playing field on appeal; it is downright insulting to do so when the Government's baitand-switch performance has not for a certainty altered any factor relevant to the decision. In that situation, at least, we should let the Government live with the consequences of its fickleness or inattention. The Court claims that it would "defeat the purpose of GVR'ing" to determine the deference issue on the merits, since that issue is "based on a circumstance . . . that will not be present in any other case brought under the statute at issue." Ibid. That is true enough (barring the unlikely event that the Government in a later case under this very statute again switches its position at the certiorari stage). But the issue of whether Chevron deference should be accorded to a certiorari-stage switch of litigating position is not at all unique to the individual case or bound up with the underlying statute. It always arises, of *189 course, in an individual case involving a particular statute, as do most questions of law. But the issue itself is thoroughly generalizable, and of general importance. In any event, I do not urge that we determine the deference issue on the merits; my vote in these cases is to deny the petitions. Finally, I must remark upon the Court's assertion that we issued "just such a GVR order last Term, without recorded dissent," ante, at 173, citing Schmidt v. Espy, 513 U.S. 801 (1994): It is not customary, but quite rare, to record dissents from grants of certiorari, including GVR's. It would be wrong to conclude from the unsigned order in Schmidt that the vote to GVR was unanimous, or even close to unanimous. Thus, Schmidt does not demonstrate that bait-and-switchdeference GVR's are an accepted practice; but the fact that Schmidt was apparently the first-ever such GVR, combined with the fact that the Government is back one Term later for another helping, demonstrates the accuracy of my prediction that the Solicitor General will be quick to take advantage of this new indulgence. What is more momentous than the Court's judgments in the particular cases before us—each of which extends our prior practice just a little bit—is its expansive expression of the authority that supports those judgments. It acknowledges, to begin with, no constitutional limitation on our power to vacate lower court orders properly brought before us. Ante, at 166. This presumably means that the constitutional grant of "appellate Jurisdiction" over "Cases . . . arising under [the] Constitution [and] Laws of the United States," Art. III, § 2, empowers the Court to vacate a state supreme court judgment, and remand the case, because it finds the opinion, though arguably correct, incomplete and unworkmanlike; or because it observes that there has been a postjudgment change in the personnel of the state supreme court, and wishes to give the new state justices a shot at the case. I think that is not so. When the Constitution divides our jurisdiction into "original Jurisdiction" and "appellate *190 Jurisdiction," I think it conveys, with respect to the latter, the traditional accoutrements of appellate power. There doubtless is room for some innovation, particularly such as may be necessary to adapt to a novel system of federalism; but the innovation cannot be limitless without altering the nature of the power conferred. Not only does the Court reject any constitutional limitation upon its power to vacate; it is unwilling to submit to any prudential constraint as well. Even while acknowledging the potential for "unfair[ness] or manipulat[ion]" and professing to agree that "our GVR power should be exercised sparingly," ante, at 168, 173, the Court commits to no standard that will control that power, other than that cloak for all excesses, "the equities," ante , at 168; see ante , at 173, 174, 175; post, at 196. We may, as the Court now pronounces, set aside valid judgments not merely when they are wrong, not merely when intervening events require that someone (either the lower court or we) reconsider them on new facts or under new legal criteria, not merely when it is ambiguous whether we have power to review them, not merely when the United States concedes that the judgment below (or one of the points of law relied upon below, or even one of the points of law possibly relied upon below) is wrong; but whenever there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration." Ante, at 167. The power to "revis[e] and correc[t]" for error, Marbury v. Madison, 1 Cranch 137, 175 (1803), has become a power to void for suspicion. Comparing the modest origins of the Court's no-fault V&R policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes. The Court justifies its approach on the ground that it "alleviates the potential for unequal treatment that is inherent in our inability to grant plenary review of all pending cases *191 raising similar issues." Ante, at 167 (internal quotation marks omitted). I do not see how it can promote equal treatment to announce a practice that we cannot possibly pursue in every case. If we were to plumb the "equities" and ponder the "errors" for all the petitions that come before us—if we were to conduct, for example, in all cases involving summary decisions, today's balancing of the "burden" to the Court of Appeals against the litigant's "interests" in having clarification of the ruling, see Stutson, post, at 196, or today's calculation of "the overall probabilities and equities," ante, at 173—we would have no time left for the cases we grant to consider on the merits. Of course we do not purport to conduct such inquiries, not even the basic one of whether the decision below is probably in "error"—which is why we insist that our denial of certiorari does not suggest a view on the merits, see, e. g., Teague v. Lane, 489 U.S. 288, 296 (1989); Singleton v. Commissioner, 439 U.S. 942 (1978) (Stevens, J., respecting denial of petition for writ of certiorari). Moreover, even if we tried applying the Court's "totality-of-thecircumstances" evaluation to all the petitions coming before us, we would be unlikely to achieve equal treatment. Such a plastic criterion is liable to produce inconsistent results in any series of decisions; it is virtually guaranteed to do so in a series of decisions made without benefit of adversary presentation (whether we should GVR is rarely briefed, much less argued—as it has not been here) and announced without accompaniment of a judicial opinion (we almost never give reasons as the Court has done today). The need to afford equal treatment argues precisely against the "totality-of-the-circumstances" approach embraced by the Court, and in favor of a more modest but standardized GVR practice. Henceforth, I shall vote for an order granting certiorari, vacating the judgment below without determination of the merits, and remanding for further consideration, only (1) where an intervening factor has arisen that has a legal bearing *192 upon the decision, (2) where, in a context not governed by Michigan v. Long, 463 U.S. 1032 (1983), clarification of the opinion below is needed to assure our jurisdiction, and (3) (in acknowledgment of established practice, though not necessarily in agreement with its validity) where the respondent or appellee confesses error in the judgment below. (I shall not necessarily note my dissent from GVR's where those conditions do not exist.) As I have discussed, neither of the present cases meets these standards. Accordingly, I respectfully dissent from today's orders and would deny both petitions.

[*] I dissent because I believe that the dispositions in both No. 94-8988, post, p. 193, and No. 94-9323, ante, p. 163, are improper extensions of our limited power to vacate without first finding error below. It sometimes occurs that, after having considered the lower court decision and found error, an appellate court merely reverses or vacates and then remands—that is, it sets the judgment aside and sends the case back to the lower court for further proceedings, rather than entering or directing entry of judgment for the appellant or petitioner. That is the appropriate course whenever the finding of error does not automatically entitle the appellant or petitioner to judgment, and the appellate court cannot conduct (or chooses not to conduct) the further inquiry necessary to resolve the questions *178 remaining in the litigation. Our books are full of such cases, from and to Vernonia School Dist. and Tuggle v. Netherland, ante, p. 10. What is at issue here, however, is a different sort of creature, which might be called "no-fault V&R": vacation of a judgment and remand without any determination of error in the judgment below. In our discretionary certiorari system of review, such an order has acquired the acronym "GVR"— for the Court grants certiorari, vacates the judgment below, and remands for further proceedings.[1] The question presented by today's cases is whether there is any limitation (other than the mandate "do what is fair") upon this practice. The Court's per curiam opinions answer "no"; I disagree. Title 28 U.S. C. 2106 provides that "[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." This facially unlimited statutory text is subject to the implicit limitations imposed by traditional practice and by the nature of the appellate system created by the Constitution and laws of the United States. The inferior federal courts (to say nothing of state courts) are not the creatures *179 and agents of this body—as are masters, whose work we may reject and send back for redoing at our own pleasure. Inferior courts are separately authorized in the Constitution, see Art. I, 8; Art. III, 1, created by Acts of Congress, see, e. g., Judiciary Act of 1789, ; Evarts Act, Act of Mar. 3, 1891, and staffed by judges whose manner of appointment and tenure of office are the same as our own, see U. S. Const., Art. II, 2; Art. III, 1; 28 U.S. C. 44, 133, 134. Despite the unqualified language of 2106, we cannot, for example, "reverse" a judgment of one of these courts "and direct the entry" of a different judgment whenever we disagree with what has been done, but only when we can identify a controlling error of law. And I think we cannot "vacate" and "remand" in the circumstances here. The Court today seeks to portray our no-fault V&R practice as traditionally covering a kaleidoscopic diversity of situations. See Lawrence v. Chater, ante, at 166-167. That is in my view a misportrayal; the practice has always been limited to a few discrete categories of cases. It began, apparently, in situations calling forth the special deference owed to state law and state courts in our system of federalism. In Missouri ex rel. Wabash R. for example, rather than find error on the basis of the federal constitutional claims raised, this Court set aside the judgment of the Missouri Supreme Court and remanded the case to that court for further proceedings so that it could consider the meaning and effect of a state statute that had been enacted after its judgment had been entered. We reasoned that "[w]hile this Court may decide these [state-law] questions, it is not obliged to do so, and in view of their nature, we deem it appropriate to refer the determination to the state court." at 131. In other words, we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves, see, e. g., Steamship See generally United *180 Later cases took the same deferential approach to state courts when the intervening event consisted of one of our own opinions. See, e. g., State Tax By 1945, we could state that it was "[a] customary procedure" for the Court "to vacate the judgment of [a] state court where there has been a supervening event since its rendition which alters the basis upon which the judgment rests, and to remand the case so that the court from which it came might reconsider the question in light of the changed circumstances." State Farm Mut. Automobile Ins. Similarly, where a federal court of appeals' decision on a point of state law had been cast in doubt by an intervening state supreme court decision, it became our practice to vacate and remand so that the question could be decided by judges "familiar with the intricacies and trends of local law and practice." The "intervening event" branch of our no-fault V&R practice has been extended to the seemingly analogous situation (though not one implicating the special needs of federalism) in which an intervening event (ordinarily a postjudgment decision of this Court) has cast doubt on the judgment rendered by a lower federal court or a state court concerning a federal question. See, e. g., ; ; This is undoubtedly the largest category of "GVRs" that now exists. See, e. g., Exxon Corp. v. Youell, post, p. 801; Kapoor v. United States, post, p. 801; Edmond v. United States, post, p. 802; Pacesetter Constr. Co. v. Carpenters 46 Northern Cal. Ctys. Conference Bd., post, p. 802; Doctor's Associates, ; We regularly hold cases that involve the same issue as a case on which certiorari has been granted and plenary review is being conducted in order that (if appropriate) they may be "GVR'd" when the case is decided. More recently, we have indulged in the practice of vacating and remanding in light of a decision of ours that preceded the judgment in question, but by so little time that the lower court might have been unaware of it. See, e. g., These applications of no-fault V&R have nothing to do with federalism, but they are appropriate to preserve the operational premise of a multitiered judicial system (viz., that lower courts will have the first opportunity to apply the governing law to the facts) and to avoid the unseemliness of holding judgments to be in error on the basis of law that did not exist when the judgments were rendered below. They thus serve the interests of efficiency and of concern for the dignity of state and lower federal tribunals. An entirely separate branch of our no-fault V&R jurisprudence, but again one that originates in the special needs of federalism, pertains to decisions of state supreme courts that are ambiguous as to whether they rest on state-law or federal-law grounds. Rather than run the risk of improperly reversing a judgment based on state law, we adopted the practice of vacating and remanding so that the state court could make the reasons for its judgment clear. See, e. g., ; Department of Mental Hygiene of[2] *182 We have GVR'd with increasing frequency in recent years on the basis of suggestions or representations made by the Solicitor General. Some of these cases are nothing more than examples of the "intervening-event GVR" discussed above, the Solicitor General pointing out that a case or statute has intervened since the judgment below. See, e. g., ; We have also announced no-fault GVR's, however, when there has been no intervening development other than the Solicitor General's confession of error in the judgment. That is a relatively new practice. As recently as 1942 a unanimous Court (two Justices not participating) wrote the following: "The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of the parties." Cf. U. S. Bancorp Mortgage Many of the early GVR's based upon the Government's confession of error appear not to have been no-fault V&R's at all, but rather summary decisions on the merits, with remand for further proceedings. See, e. g., (emphasis added); Our recent practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to the lower court to decide if the confession is correct. As late as 1981, the current Chief Justice, joined by Justice White, objected to this practice. See ("I harbor serious doubt that our adversary system of justice is well served by routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own"). I agree with that position. The practice is by now well entrenched, however. See, e. g., ; 510 U.S. 3 It may be considered a separate category of no-fault V&R. Finally (and most questionably) we have in very recent years GVR'd where the Solicitor General has not conceded error in the judgment below, but has merely acknowledged that the ground, or one of the grounds, on which the lower court relied was mistaken. See, e. g., ; That is in my view a mistaken practice, since we should not assume that a court of appeals has adopted a legal position only because the Government supported it. Four Justices now sitting on the Court have disapproved this sort of GVR. See[3] *184 Today's cases come within none of these categories of nofault V&R, not even the questionable last one. In Stutson v. United States, post, p. 193, the decision "in light of" which we vacate the judgment and remand, Pioneer Investment Services had been on the books for well more than a year before the Eleventh Circuit announced the judgment under review, and for almost two years before that court denied rehearing. Moreover, the parties specifically argued to the Court of Appeals the question whether Pioneer established the standard applicable to petitioner's claim of "excusable neglect" under Federal Rule of Appellate Procedure 4(b), with the United States disagreeing with petitioner and taking the position that Pioneer was not controlling. The Eleventh Circuit ruled against petitioner on the merits of his claim; its one-sentence order contained neither a reference to Pioneer nor any suggestion that the court viewed the case as turning on which party's proffered standard was applied. The United States has now revised its legal position and— though it makes no suggestion that the Court of Appeals' judgment was incorrect—is of the view that Pioneer does establish the standard governing petitioner's claim. But the fact that the party who won below repudiates on certiorari its position on a particular point of law does not give rise to any "intervening," postjudgment factor that must be considered. The law is the law, whatever the parties, including the United States, may have argued. As described above, *185 we have sometimes GVR'd where the Government has, while still supporting the judgment in its favor, conceded the error of a legal point on which the lower court explicitly relied. As I have explained, see in my view even that practice denies valid judgments the respect to which they are entitled. But the GVR in the present case goes still further. We do not know in this case whether the Eleventh Circuit even agreed with the Government's position that has now been repudiated; for all we know, the court applied Pioneer and found against petitioner under that standard. The judgment is declared invalid because the Eleventh Circuit might (or might not) have relied on a standard (non-Pioneer ) that might (or might not) be wrong, that might (or might not) have affected the outcome, and that the Eleventh Circuit might (or might not) abandon (whether or not it is wrong) because the Government has now abandoned it. This seems to me beyond all reason. The Court justifies its setting aside of the judgment on the ground that "we [do not] place an excessive burden on [the Eleventh Circuit], relative to [petitioner's] liberty and due process interests, by inviting it to clarify its ambiguous ruling." Stutson, post, at 196. Vacating for ambiguity may be justifiable, as I have noted, when the ambiguity calls into question our very power to take and decide the case, see and n. 2. But where that power is (as it is here) beyond doubt, it seems to me quite improper to vacate merely in order to get a better idea of whether the case is "worth" granting full review. If this is appropriate with respect to court of appeals' summary dispositions of criminal cases, I see no reason why it is not appropriate with respect to criminal dispositions accompanied by opinions as well. Or, for that matter, why it is not appropriate for civil cases. "GVR'd for clarification of ———" should become a common form of order, drastically altering the role of this Court. In my view we have no power to make such a tutelary remand, *186 as to a schoolboy made to do his homework again.[4] The Court insists that declining to remand for clarification would risk "immunizing summary dispositions from our review," Stutson, post, at 196. That is not so. It is fully within our power to review this case, and any other case summarily decided below, by granting certiorari and proceeding to consider the merits; or indeed, where the circumstances warrant, to summarily reverse. Cf. Hellman, "Granted, Vacated, and Remanded"—Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 391-392 (noting that in the 1970's as the Court's GVR practice "increased far beyond what ithad been in earlier years," its use of summary reversal based on intervening precedents decreased dramatically). In No. 94-9323, the Court again GVR's because the Government has changed a legal position: The Commissioner of Social Security informs us that she now agrees with petitioner on a preliminary point of law that the Court of Appeals found in the Government's favor. And here again, respondent does not concede that the judgment below was in error, for she "ha[s] not reached a firm conclusion" as to her position on the subsequent point of law that will (if her recantation on the preliminary point is accepted) control the outcome of the case. Brief for Respondent in No. 94-9323, p. 13.[5] There is, however, a special factor in this second case: Respondent is an agency head, whose view on the legal point in question is in some circumstances entitled to deference, *187 see Chevron U. S. A. If it were clear that respondent's change in position were entitled to deference, I would have no problem with the GVR; the new position would then constitute an intervening postjudgment factor whose effect the Court of Appeals should be allowed to consider. But even if we allow deference to an agency view first expressed in pending litigation ; cf. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a decent concern for those litigating against the Government and for our lower court judges should induce us to disregard, for Chevron purposes, a litigating position first expressed at the certiorari stage. The United States is the most frequent, and hence the most calculating, of our litigants. If we accord deference in the circumstances here, we can expect the Government to take full advantage of the opportunity to wash out, on certiorari, disadvantageous positions it has embraced below; and we can expect it to focus less of its energy upon getting its position "right" in the courts of appeals. The Court, however, thinks it unnecessary to decide the deference question. It is enough, as the Court sees it, that its summary review has led it to "believe that [the] agency interpretation is reasonably probably entitled to deference and potentially determinative." Ante, at 172. I do not agree. It seems to me our "intervening-event GVR's" should not be extended to the situation where (1) the intervening event consists of a party's going back on what it argued to the court of appeals, and (2) it is not even certain that the change in position is legally cognizable. That seems to me to accord inadequate respect to the work of our colleagues below. Moreover, it is not clear to me that the question before us (should an agency change of position at the certiorari stage be accorded deference?) can even be reached *188 by the Court of Appeals. Surely we do not expect the Court of Appeals to declare our vacation and remand invalid. Thus, the Court of Appeals will have before it the somewhat different question whether the agency change of position before it is entitled to deference. I suppose it may conclude that, since a change of position on certiorari is not entitled to deference, a change of position on a remand triggered by change of position on certiorari is not entitled to deference— but that would assuredly be a convoluted holding. The question of what is permissible on certiorari seems to me peculiarly within the domain of this Court. Since we are in doubt on the deference point in the present case, we should either deny the petition, or grant it and have the deference point argued. The Court's failure to comprehend why it should make any difference that the Government's changed litigating position may not be entitled to deference, see ante, at 172-173, displays a lamentable lack of appreciation of the concept of adding insult to injury. It is disrespectful enough of a lower court to set its considered judgment aside because the Government has altered the playing field on appeal; it is downright insulting to do so when the Government's baitand-switch performance has not for a certainty altered any factor relevant to the decision. In that situation, at least, we should let the Government live with the consequences of its fickleness or inattention. The Court claims that it would "defeat the purpose of GVR'ing" to determine the deference issue on the merits, since that issue is "based on a circumstance that will not be present in any other case brought under the statute at issue." That is true enough (barring the unlikely event that the Government in a later case under this very statute again switches its position at the certiorari stage). But the issue of whether Chevron deference should be accorded to a certiorari-stage switch of litigating position is not at all unique to the individual case or bound up with the underlying statute. It always arises, of *189 course, in an individual case involving a particular statute, as do most questions of law. But the issue itself is thoroughly generalizable, and of general importance. In any event, I do not urge that we determine the deference issue on the merits; my vote in these cases is to deny the petitions. Finally, I must remark upon the Court's assertion that we issued "just such a GVR order last Term, without recorded dissent," ante, at 173, citing : It is not customary, but quite rare, to record dissents from grants of certiorari, including GVR's. It would be wrong to conclude from the unsigned order in Schmidt that the vote to GVR was unanimous, or even close to unanimous. Thus, Schmidt does not demonstrate that bait-and-switchdeference GVR's are an accepted practice; but the fact that Schmidt was apparently the first-ever such GVR, combined with the fact that the Government is back one Term later for another helping, demonstrates the accuracy of my prediction that the Solicitor General will be quick to take advantage of this new indulgence. What is more momentous than the Court's judgments in the particular cases before us—each of which extends our prior practice just a little bit—is its expansive expression of the authority that supports those judgments. It acknowledges, to begin with, no constitutional limitation on our power to vacate lower court orders properly brought before us. Ante, at 166. This presumably means that the constitutional grant of "appellate Jurisdiction" over "Cases arising under [the] Constitution [and] Laws of the United States," Art. III, 2, empowers the Court to vacate a state supreme court judgment, and remand the case, because it finds the opinion, though arguably correct, incomplete and unworkmanlike; or because it observes that there has been a postjudgment change in the personnel of the state supreme court, and wishes to give the new state justices a shot at the case. I think that is not so. When the Constitution divides our jurisdiction into "original Jurisdiction" and "appellate *190 Jurisdiction," I think it conveys, with respect to the latter, the traditional accoutrements of appellate power. There doubtless is room for some innovation, particularly such as may be necessary to adapt to a novel system of federalism; but the innovation cannot be limitless without altering the nature of the power conferred. Not only does the Court reject any constitutional limitation upon its power to vacate; it is unwilling to submit to any prudential constraint as well. Even while acknowledging the potential for "unfair[ness] or manipulat[ion]" and professing to agree that "our GVR power should be exercised sparingly," ante, at 168, 173, the Court commits to no standard that will control that power, other than that cloak for all excesses, "the equities," ante at 168; see ante at 173, 174, ; post, at 196. We may, as the Court now pronounces, set aside valid judgments not merely when they are wrong, not merely when intervening events require that someone (either the lower court or we) reconsider them on new facts or under new legal criteria, not merely when it is ambiguous whether we have power to review them, not merely when the United States concedes that the judgment below (or one of the points of law relied upon below, or even one of the points of law possibly relied upon below) is wrong; but whenever there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration." Ante, at 167. The power to "revis[e] and correc[t]" for error, has become a power to void for suspicion. Comparing the modest origins of the Court's no-fault V&R policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes. The Court justifies its approach on the ground that it "alleviates the potential for unequal treatment that is inherent in our inability to grant plenary review of all pending cases *191 raising similar issues." Ante, at 167 (internal quotation marks omitted). I do not see how it can promote equal treatment to announce a practice that we cannot possibly pursue in every case. If we were to plumb the "equities" and ponder the "errors" for all the petitions that come before us—if we were to conduct, for example, in all cases involving summary decisions, today's balancing of the "burden" to the Court of Appeals against the litigant's "interests" in having clarification of the ruling, see Stutson, post, at 196, or today's calculation of "the overall probabilities and equities," ante, at 173—we would have no time left for the cases we grant to consider on the merits. Of course we do not purport to conduct such inquiries, not even the basic one of whether the decision below is probably in "error"—which is why we insist that our denial of certiorari does not suggest a view on the merits, see, e. g., ; Moreover, even if we tried applying the Court's "totality-of-thecircumstances" evaluation to all the petitions coming before us, we would be unlikely to achieve equal treatment. Such a plastic criterion is liable to produce inconsistent results in any series of decisions; it is virtually guaranteed to do so in a series of decisions made without benefit of adversary presentation (whether we should GVR is rarely briefed, much less argued—as it has not been here) and announced without accompaniment of a judicial opinion (we almost never give reasons as the Court has done today). The need to afford equal treatment argues precisely against the "totality-of-the-circumstances" approach embraced by the Court, and in favor of a more modest but standardized GVR practice. Henceforth, I shall vote for an order granting certiorari, vacating the judgment below without determination of the merits, and remanding for further consideration, only (1) where an intervening factor has arisen that has a legal bearing *192 upon the decision, (2) where, in a context not governed by clarification of the opinion below is needed to assure our jurisdiction, and (3) (in acknowledgment of established practice, though not necessarily in agreement with its validity) where the respondent or appellee confesses error in the judgment below. (I shall not necessarily note my dissent from GVR's where those conditions do not exist.) As I have discussed, neither of the present cases meets these standards. Accordingly, I respectfully dissent from today's orders and would deny both petitions.

Justice Thomas

concurring

Cuozzo Speed Technologies, LLC v. Lee

https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/

https://www.courtlistener.com/api/rest/v3/clusters/3214886/

2015-071

The Court invokes Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and United States v. Mead Corp., 533 U.S. 218 (2001), to resolve one of the questions presented in this case. See ante, at 2, 13–20. But today’s decision does not rest on Chevron’s fiction that ambiguity in a statutory term is best construed as an implicit delegation of power to an administrative agency to determine the bounds of the law. In an appropriate case, this Court should reconsider that fiction of Chevron and its progeny. See Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring) (slip op., at 2) (“Chevron deference raises serious separation-of- powers questions”); see also Department of Transportation v. Association of American Railroads, 575 U. S. ___, ___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 4) (“[T]he discretion inherent in executive power does not comprehend the discretion to formulate generally applica- ble rules of private conduct”); Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015) (THOMAS, J., concur- ring in judgment) (slip op., at 8–9) (“Those who ratified the Constitution knew that legal texts would often contain ambiguities. . . . The judicial power was understood to 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE THOMAS, J., concurring include the power to resolve these ambiguities over time”); Cass, Is Chevron’s Game Worth the Candle? Burning Interpretation at Both Ends, in Liberty’s Nemesis 57–69 (D. Reuter & J. Yoo eds. 2016). The Court avoids those constitutional concerns today because the provision of the America Invents Act at issue contains an express and clear conferral of authority to the Patent Office to promulgate rules governing its own pro- ceedings. See 35 U.S. C. §316(a)(4); ante, at 13. And by asking whether the Patent Office’s preferred rule is rea- sonable, ante, at 17–20, the Court effectively asks whether the rulemaking was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in conformity with the Administrative Procedure Act, 5 U.S. C. §706(2)(A). I therefore join the Court’s opinion in full. Cite as: 579 U. S. ____ (2016) 1 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part SUPREME COURT OF THE UNITED STATES _________________ No. 15–446 _________________ CUOZZO SPEED TECHNOLOGIES, LLC, PETITIONER v. MICHELLE K. LEE, UNDER SECRETARY OF COM- MERCE FOR INTELLECTUAL PROPERTY AND DIR- ECTOR, PATENT AND TRADEMARK OFFICE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 20, 2016] JUSTICE ALITO, with whom JUSTICE SOTOMAYOR joins, concurring in part and dissenting in part. Congress has given the Patent and Trademark Office considerable authority to review and cancel issued patent claims. At the same time, Congress has cabined that power by imposing significant conditions on the Patent Office’s institution of patent review proceedings. Unlike the Court, I do not think that Congress intended to shield the Patent Office’s compliance—or noncompliance—with these limits from all judicial scrutiny. Rather, consistent with the strong presumption favoring judicial review, Congress required only that judicial review, including of issues bearing on the institution of patent review proceed- ings, be channeled through an appeal from the agency’s final decision. I respectfully dissent from the Court’s contrary holding.1 I In the Leahy-Smith America Invents Act (AIA), 35 U.S. C. §100 et seq., Congress created three new mecha- —————— 1 I agree with the Court that the Patent Office permissibly applies a “broadest reasonable construction” standard to construe patent claims in inter partes review, and I therefore join Parts I and III of its opinion. 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. nisms for Patent Office review of issued patent claims— inter partes review, post-grant review, and covered busi- ness method patent review (CBM review). This case involves the first of these proceedings, inter partes review. Under inter partes review, anyone may file a petition challenging the patentability of an issued patent claim at almost any time. §§311(a), (c). The grounds for challenge are limited to the patentability of the claim under §102 (which requires patent claims to be novel) and §103 (which requires patent claims to be nonobvious). §311(b). The statute imposes other restrictions as well. A peti- tion for inter partes review “may be considered only if ” the petition satisfies certain requirements, including (as rele- vant here) that the petition “identif[y], in writing and with particularity, each claim challenged, the grounds on which the challenge to each claim is based, and the evidence that supports the grounds for the challenge to each claim.” §312(a)(3). Additionally, “inter partes review may not be instituted” if the party challenging the patent previously filed a civil action challenging the patent’s validity or was sued for infringing the patent more than a year before seeking inter partes review. §§315(a)(1), (b). Finally, the Patent Office may not institute inter partes review “unless the Director [of the Patent Office] determines that the information presented in the [challenger’s] petition . . . and any response [by the patent owner] shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” §314(a).2 The statute provides that “[t]he determination by the —————— 2 The Director of the Patent Office has delegated his authority to institute inter partes review to the Patent Trial and Appeal Board (Board), which also conducts and decides the inter partes review. See 37 CFR §§42.4(a), 42.108 (2015); 35 U.S. C. §§316(c), 318(a). I there- fore use the term “Patent Office” to refer to the Director, the Board, and the Patent Office generally, as the case may be. Cite as: 579 U. S. ____ (2016) 3 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part Director whether to institute an inter partes review under this section shall be final and nonappealable.” §314(d). If inter partes review is instituted, the Patent Office con- ducts a trial that culminates in a “final written decision” on the patentability of the challenged claims. §318(a). Any patent owner or challenger that is “dissatisfied” with that decision may appeal to the Federal Circuit. §319. II In this case, the Patent Office instituted inter partes review of claims 10 and 14 of Cuozzo’s patent based on prior art that the challenger’s petition did not cite with respect to those claims. After trial, the Patent Office issued a final written decision holding those claims un- patentable, and Cuozzo appealed that decision to the Federal Circuit. In its appeal, Cuozzo argued (among other things) that the Patent Office had violated the re- quirement that a petition for inter partes review “may be considered only if ” the petition identifies “the grounds on which the challenge to each claim is based, and the evi- dence that supports the grounds for the challenge,” “with particularity.” §312(a)(3). The Federal Circuit held that it could not entertain this argument because §314(d) provides that the Patent Of- fice’s decision to institute an inter partes review is “final and nonappealable.” See In re Cuozzo Speed Technolo- gies, LLC, 793 F.3d 1268, 1273 (2015). This Court now affirms. I disagree. We have long recognized that “Congress rarely intends to prevent courts from enforcing its direc- tives to federal agencies. For that reason, this Court applies a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. ___, ___ (2015) (slip op., at 4) (quoting Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986)). While the “presumption is rebuttable,” “the 4 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. agency bears a ‘heavy burden’ in attempting to show that Congress ‘prohibit[ed] all judicial review’ of the agency’s compliance with a legislative mandate.” Mach Mining, supra, at ___–___ (slip op., at 4–5) (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)). If a provision can reasonably be read to permit judicial review, it should be. Our decision in Lindahl v. Office of Personnel Manage- ment, 470 U.S. 768 (1985), illustrates the power of this presumption. The statute at issue there provided that agency “ ‘decisions . . . concerning [questions of disability and dependency] are final and conclusive and are not subject to review.’ ” Id., at 771. The Federal Circuit con- cluded that the statute cut off all judicial review of such decisions, stating that “ ‘[i]t is difficult to conceive of a more clear-cut statement of congressional intent to pre- clude review than one in which the concept of finality is thrice repeated in a single sentence.’ ” Id., at 779. We reversed. We acknowledged that the statute “plausibly c[ould] be read as imposing an absolute bar to judicial review,” but we concluded that “it also quite naturally c[ould] be read as precluding review only of . . . factual determinations” underlying the agency’s decision, while permitting review of legal questions. Ibid. In light of the presumption of reviewability, we adopted the latter read- ing. We observed that “when Congress intends to bar judicial review altogether, it typically employs language far more unambiguous and comprehensive,” giving as an example a statute that made an agency decision “ ‘final and conclusive for all purposes and with respect to all questions of law or fact’ ” and “ ‘not subject to review by another official of the United States or by a court by man- damus or otherwise.’ ” Id., at 779–780, and n. 13.3 —————— 3 The Court tries to recast Lindahl as a decision about “agenc[y] pri- macy” by focusing on its recognition that factual questions were unre- viewable under the relevant statute (no one disputed that) and treating Cite as: 579 U. S. ____ (2016) 5 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part This is a far easier case than Lindahl. There is no question that the statute now before us can naturally— perhaps most naturally—be read to permit judicial review of issues bearing on the Patent Office’s institution of inter partes review. Section 314(d) reads: “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” Unlike the statutes we addressed in Lindahl (including the one we found to permit review), §314(d) does not say that an institution decision is “not subject to review.” Instead, it makes the institution decision “nonappealable.” This is fairly interpreted to bar only an appeal from the in- stitution decision itself, while allowing review of institution- related issues in an appeal from the Patent Office’s final written decision at the end of the proceeding. See §319. Our cases have used the term “nonappealable” in just this way—to refer to matters that are not immediately or independently appealable, but which are subject to review at a later point.4 Thus, while the decision to insti- tute inter partes review is “final and nonappealable” in the sense that a court cannot stop the proceeding from going forward,5 the question whether it was lawful to institute —————— the case’s holding that legal questions were reviewable as an after- thought. Ante, at 10. The review that Lindahl permitted—to correct “a substantial departure from important procedural rights, a misconstruc- tion of the governing legislation, or some like error going to the heart of the administrative determination,” 470 U.S., at 791 (internal quotation marks omitted)—is quite similar to the review I envision of Patent Office decisions to institute inter partes review, as the discussion that follows makes clear. 4 See Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 105, n. 1, 109 (2009) (agreeing with decisions holding that attorney-client privi- lege rulings are “nonappealable” because “postjudgment appeals generally suffice to protect the rights of litigants”); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 472, n. 17 (1978) (describing an order denying class certification as “nonappealable” but noting that it “is subject to effective review after final judgment”). 5 Like the Court, I do not have occasion to address whether in ex- 6 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. review will not escape judicial scrutiny. This approach is consistent with the normal rule that a party may chal- lenge earlier agency rulings that are themselves “not directly reviewable” when seeking review of a final, ap- pealable decision. 5 U.S. C. §704. And it strikes a sensi- ble balance: The Patent Office may proceed unimpeded with the inter partes review process (which must normally be completed within one year, see 35 U.S. C. §316(a)(11)), but it will be held to account for its compliance with the law at the end of the day. In rejecting this commonsense interpretation, the Court gives short shrift to the presumption in favor of judicial review. Its primary reason for disregarding the presump- tion reduces to an assertion—devoid of any textual analy- sis—that surely §314(d) must bar review of legal questions related to institution decisions. Ante, at 7–8. As I have explained, the statute’s text does not require that conclusion. Moving (further) away from the statutory text, the Court next objects that allowing judicial review “would undercut one important congressional objective, namely, giving the Patent Office significant power to revisit and revise earlier patent grants.” Ante, at 8. I am not sure that the Court appreciates how remarkable this assertion is. It would give us cause to do away with judicial review whenever we think that review makes it harder for an agency to carry out important work. In any event, the majority’s logic is flawed. Judicial review enforces the limits that Congress has imposed on the agency’s power. It thus serves to buttress, not “undercut,” Congress’s objectives. By asserting otherwise, the majority loses sight of the principle that “no legislation pursues its pur- poses at all costs.” Rodriguez v. United States, 480 U. S. —————— traordinary cases a patent owner might seek mandamus to stop an inter partes review before the proceeding concludes. Cite as: 579 U. S. ____ (2016) 7 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part 522, 525–526 (1987) (per curiam). “Every statute pur- poses, not only to achieve certain ends, but also to achieve them by particular means—and there is often a consider- able legislative battle over what those means ought to be. The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the two.” Director, Office of Workers’ Compensa- tion Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 136 (1995). The inter partes review statute is no exception. It empowers the Patent Office to clean up bad patents, but it expressly forbids the Patent Office to institute inter partes review—or even consider petitions for inter partes review—unless certain conditions are satisfied. Nothing in the statute suggests that Con- gress wanted to improve patent quality at the cost of fidelity to the law. The Court also observes that the inter partes review appeal provision, §319, “limit[s] appellate review to the ‘final written decision.’ ” Ante, at 8. The majority reads too much into this provision. Section 319 provides simply that “[a] party dissatisfied with the final written decision . . . may appeal the decision.” The statute does not restrict the issues that may be raised in such an appeal. As the Patent Office once explained (before having a change of heart), the “plain language of the statutory text” recognizes a “right of judicial review . . . for any party ‘dissatisfied’ by the [Patent Office’s] ultimate ‘written [decision],’ ” and “[n]othing in the statutory scheme limits the reasons that a party might be so ‘dissatisfied.’ ” Memorandum of Law in Support of Defendant’s Motion to Dismiss in Versata Development Group, Inc. v. Rea, Civ. Action No. 1:13cv328 (ED Va., May 16, 2013), p. 16. A party may be dissatisfied with a final written decision in an inter partes review because the Patent Office lacked authority to institute the proceeding in the first place, or because the Office commit- ted some other error in the lead-up to its final decision. 8 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. Neither §314(d) nor §319 prevents a party from pressing such issues on an appeal from the final decision. This is familiar practice under 28 U.S. C. §1291, which similarly limits appeals to “final decisions of the district courts” but allows appellants to challenge earlier rulings as part of those appeals. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (“The general rule is that a party is entitled to a single appeal, to be deferred until final judg- ment has been entered, in which claims of district court error at any stage in the litigation may be ventilated” (internal quotation marks omitted)); 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3905.1, pp. 250, 252 (2d ed. 1992) (noting “the general rule that an appeal from final judgment . . . permits re- view of all rulings that led up to the judgment” and ob- serving that “[t]he variety of orders open to review on subsequent appeal from a final judgment is enormous”). And, as noted above, judicial review of “final agency ac- tion” likewise encompasses earlier rulings that are “not directly reviewable.” 5 U.S. C. §704; see supra, at 6. The Court next contends that my interpretation renders 35 U.S. C. §314(d) “superfluous.” Ante, at 9. Reading the statute to defer review of institution decisions is “unneces- sary,” the Court says, because the “Administrative Proce- dure Act already limits review to final agency decisions” and a “decision to initiate inter partes review is ‘prelimi- nary,’ not ‘final.’ ” Ibid. But Congress reasonably may have thought that the matter needed clarifying, given that §314(d) itself calls such a decision “final” (albeit in a dif- ferent sense, see supra, at 5–6). Language is not superflu- ous when it “remove[s] any doubt” about a point that might otherwise be unclear. Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226 (2008). More important, my reading prevents an appeal from a decision not to institute inter partes review, which is plainly final agency action and so—absent §314(d)—might otherwise trigger immedi- Cite as: 579 U. S. ____ (2016) 9 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part ate review. The Court asserts that this too is unnecessary because, in its view, a decision to deny inter partes review is “committed to agency discretion by law” and so unre- viewable under normal principles of administrative law. 5 U.S. C. §701(a)(2); see ante, at 9. I agree that one can infer from the statutory scheme that the Patent Office has discretion to deny inter partes review even if a challenger satisfies the threshold requirements for review. But the law does not say so directly and Congress may not have thought the point self-evident. Again, 35 U.S. C. §314(d) plays a clarifying role. This gives the provision plenty of work to do. There is no need to read it more broadly.6 III A None of this is to say that courts must—or should— throw out an inter partes review decision whenever there is some technical deficiency in the challenger’s petition or in the Patent Office’s institution decision. Although §314(d) does not preclude review of issues bearing on institution, normal limits on judicial review still apply. For example, errors that do not cause a patent owner prejudice may not warrant relief. See 5 U.S. C. §706 (“[D]ue account shall be taken of the rule of prejudicial error”). Some errors may also be superseded by later —————— 6 It is true that my interpretation leaves no apparent avenue (short of mandamus, at least) for judicial review of decisions not to institute inter partes review. This demonstrates that the presumption of re- viewability has its limits. Nor is it surprising that Congress would design such a scheme. A patent challenger does not have nearly as much to lose from an erroneous denial of inter partes review as a patent owner stands to lose from an erroneous grant of inter partes review. Although such a challenger loses some of the advantages of inter partes review (such as a more favorable claim construction stand- ard and a lower burden of proof), it remains free to challenge the patent’s validity in litigation. A patent owner, on the other hand, risks the destruction of a valuable property right. 10 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. developments. Most notably, once the Patent Office issues its final written decision, the probabilistic question whether a challenger is “reasonabl[y] likel[y]” to prevail on the merits, 35 U.S. C. §314(a), will be subsumed by the ultimate question whether the challenger should in fact prevail.7 And while I have no occasion here to decide the matter, it may be that courts owe some degree of deference to the Patent Office’s application of the statutory prereq- uisites to inter partes review. I would leave these considerations for the Court of Appeals to address in the first instance. But I must con- fess doubts that Cuozzo could ultimately prevail. As noted above, Cuozzo argues that the Patent Office improperly granted inter partes review of claims 10 and 14 on grounds not asserted in the petition for inter partes re- view, in violation of the statutory requirement that a petition must state the grounds for challenge “with partic- ularity.” §312(a)(3). The problem for Cuozzo is that claim 17—which the petition properly challenged—incorporates all of the elements of claims 10 and 14. Accordingly, an assertion that claim 17 is unpatentable in light of certain prior art is necessarily an assertion that claims 10 and 14 are unpatentable as well. Assuming that Cuozzo must show prejudice from the error it alleges, it is hard to see how Cuozzo could do so here. —————— 7 The Court recognizes that such issues are unreviewable even absent a statute like §314(d), comparing the Patent Office’s “reasonable likelihood” determination to an indicting grand jury’s finding of proba- ble cause. See ante, at 9. But it draws the wrong analogy for this case. Cuozzo’s complaint is that the petition for inter partes review did not articulate its challenge to certain patent claims with adequate particu- larity. This is more akin to an argument that an indictment did not sufficiently allege an offense and provide notice of the charges against the defendant, which is reviewable after trial and judgment. See, e.g., United States v. Carll, 105 U.S. 611, 612–613 (1882) (overturning a conviction based on the insufficiency of the indictment). Cite as: 579 U. S. ____ (2016) 11 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part B But any perceived weakness in the merits of Cuozzo’s appeal does not mean that such issues are unworthy of judicial review. Section 312(a)(3)’s particularity require- ment is designed, at least in part, to ensure that a patent owner has sufficient notice of the challenge against which it must defend. Once inter partes review is instituted, the patent owner’s response—its opening brief, essentially—is filed as an opposition to the challenger’s petition. See §316(a)(8); 37 CFR §42.120. Thus, if a petition fails to state its challenge with particularity—or if the Patent Office institutes review on claims or grounds not raised in the petition—the patent owner is forced to shoot into the dark. The potential for unfairness is obvious. Other problems arise if the Patent Office fails to enforce the prohibitions against instituting inter partes review at the behest of challengers that have already sued to invali- date the patent or that were sued for infringement more than a year before seeking inter partes review. 35 U.S. C. §§315(a)(1), (b). Allowing such a challenge exposes the patent owner to the burden of multiplicative proceed- ings—including discovery in both forums, see §316(a)(5)— while permitting the challenger to exploit inter partes review’s lower standard of proof and more favorable claim construction standard. Congress understandably thought that the Patent Office’s power should not be wielded in this way. Yet, according to the Court, Congress made courts powerless to correct such abuses. Even more striking are the consequences that today’s decision portends for the AIA’s other patent review mech- anisms, post-grant review and CBM review, see supra, at 1–2, which are subject to a “no appeal” provision virtually identical to §314(d). See §324(e) (“The determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable”); see AIA §18(a)(1), 125 Stat. 329, note following 35 U.S. C. 12 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. §321, p. 1442 (CBM review generally “shall be regarded as, and shall employ the standards and procedures of, a post-grant review”). Post-grant review and CBM review allow for much broader review than inter partes review. While inter partes review is limited to assessing patent- ability under §102 and §103, in post-grant review and CBM review, patent claims can also be scrutinized (and can- celed) on any invalidity ground that may be raised as a defense to infringement, including such grounds as ineli- gible subject matter under §101, indefiniteness under §112, and improper enlargement of reissued claims under §251. See §321(b); §§282(b)(2), (3). But this broader re- view comes with its own strict limits. A petition for post- grant review must be filed within nine months after a patent is granted. §321(c). And while CBM review is not subject to this time limit, Congress imposed a subject- matter restriction: The Patent Office “may institute a [CBM review] proceeding only for a patent that is a cov- ered business method patent,” which Congress defined to cover certain patents with claims relating to “a financial product or service.” AIA §§18(a)(1)(E), (d)(1), at 1442; see §18(a)(1)(A), ibid.8 Congress thus crafted a three-tiered framework for Patent Office review of issued patents: broad post-grant review in a patent’s infancy, followed by narrower inter partes review thereafter, with a limited exception for broad review of older covered business method patents. Today’s decision threatens to undermine that carefully designed scheme. Suppose that the Patent Office instituted post-grant review on a petition filed 12 months (or even 12 years) after a patent was issued, and then invalidated a patent claim as indefinite under §112—a ground available —————— 8 Additionally, a challenger may file a petition for CBM review only if it has been sued for or charged with infringement of the patent. AIA §18(a)(1)(B), at 1442. Cite as: 579 U. S. ____ (2016) 13 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part in post-grant review but not in inter partes review. This would grossly exceed the Patent Office’s authority and would be manifestly prejudicial to the patent owner. Can Congress really have intended to shield such shenanigans from judicial scrutiny? The Court answers with a non sequitur: Of course the Patent Office cannot cancel a patent under §112 “in inter partes review.” Ante, at 11. The Court seems to think that we could overturn the Patent Office’s decision to institute “post-grant review” based on an untimely petition and declare that the agency has really instituted only “inter partes review.” But how is that possible under today’s opinion? After all, the peti- tion’s timeliness, no less than the particularity of its alle- gations, is “closely tied to the application and interpreta- tion of statutes related to the Patent Office’s decision to initiate . . . review,” and the Court says that such ques- tions are unreviewable. Ibid.; see §321(c); §312(a)(3). To take things a step further, suppose that the Patent Office purported to forgive the post-grant review petition’s tardiness by declaring the challenged patent a “covered business method patent,” even though the patent has nothing to do with financial products or services (it claims, say, a new kind of tempered glass). Again, this involves the application of statutes related to the Patent Office’s institution decision. See AIA §18(a)(1)(E), at 1442 (Patent Office “may institute a [CBM review] proceeding only for a patent that is a covered business method patent”). So is this specious determination immune from judicial scrutiny under the Court’s reasoning? If judicial review of these issues is unavailable, then nothing would prevent the Patent Office from effectively collapsing Congress’s three-tiered review structure and subjecting all patents to broad post-grant review at all times. Congress cannot have intended that. I take the Court at its word that today’s opinion will not permit the Patent Office “to act outside its statutory lim- 14 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. its” in these ways. Ante, at 11. But how to get there from the Court’s reasoning—and how to determine which “stat- utory limits” we should enforce and which we should not— remains a mystery. I would avoid the suspense and hold that 35 U.S. C. §314(d) does not bar judicial review of the Patent Office’s compliance with any of the limits Congress imposed on the institution of patent review proceedings. That includes the statutory limit, §312(a)(3), that Cuozzo alleges was violated here. * * * In enacting the AIA, Congress entrusted the Patent Office with a leading role in combating the detrimental effect that bad patents can have on innovation. But Con- gress did not give the agency unbridled authority. The principles I have set forth afford the Patent Office plenty of latitude to carry out its charge, while ensuring that the Office’s actions—no less than the patents it reviews—stay within the bounds of the law. I would vacate the Federal Circuit’s judgment and remand for that court to consider whether the Patent Office exceeded its authority to institute inter partes review with respect to claims 10 and 14 of Cuozzo’s patent. With respect to claim 17, I agree with the Court that the judgment below must be affirmed. See n. 1, supra; Part III, ante

The Court invokes Chevron U. S. A. and United to resolve one of the questions presented in this case. See ante, at 2, 3–20. But today’s decision does not rest on Chevron’s fiction that ambiguity in a statutory term is best construed as an implicit delegation of power to an administrative agency to determine the bounds of the law. In an appropriate case, this Court should reconsider that fiction of Chevron and its progeny. See Michigan v. EPA, 576 U. S. (THOMAS, J., concurring) (slip op., at 2) (“Chevron deference raises serious separation-of- powers questions”); see also Department of Transportation v. Association of American Railroads, 575 U. S. (THOMAS, J., concurring in judgment) (slip op., at 4) (“[T]he discretion inherent in executive power does not comprehend the discretion to formulate generally applica- ble rules of private conduct”); Perez v. Mortgage Bankers Assn., 575 U. S. – (THOMAS, J., concur- ring in judgment) (slip op., at 8–9) (“Those who ratified the Constitution knew that legal texts would often contain ambiguities. The judicial power was understood to 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE THOMAS, J., concurring include the power to resolve these ambiguities over time”); Cass, Is Chevron’s Game Worth the Candle? Burning Interpretation at Both Ends, in Liberty’s Nemesis 57–69 (D. Reuter & J. Yoo eds. 206). The Court avoids those constitutional concerns today because the provision of the America Invents Act at issue contains an express and clear conferral of authority to the Patent Office to promulgate rules governing its own pro- ceedings. See 35 U.S. C. ante, at 3. And by asking whether the Patent Office’s preferred rule is rea- sonable, ante, at 7–20, the Court effectively asks whether the rulemaking was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in conformity with the Administrative Procedure Act, 5 U.S. C. I therefore join the Court’s opinion in full. Cite as: 579 U. S. (206) ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part SUPREME COURT OF THE UNITED STATES No. 5–446 CUOZZO SPEED TECHNOLOGIES, LLC, PETITIONER v. MICHELLE K. LEE, UNDER SECRETARY OF COM- MERCE FOR INTELLECTUAL PROPERTY AND DIR- ECTOR, PATENT AND TRADEMARK OFFICE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 20, 206] JUSTICE ALITO, with whom JUSTICE SOTOMAYOR joins, concurring in part and dissenting in part. Congress has given the Patent and Trademark Office considerable authority to review and cancel issued patent claims. At the same time, Congress has cabined that power by imposing significant conditions on the Patent Office’s institution of patent review proceedings. Unlike the Court, I do not think that Congress intended to shield the Patent Office’s compliance—or noncompliance—with these limits from all judicial scrutiny. Rather, consistent with the strong presumption favoring judicial review, Congress required only that judicial review, including of issues bearing on the institution of patent review proceed- ings, be channeled through an appeal from the agency’s final decision. I respectfully dissent from the Court’s contrary holding. I In the Leahy-Smith America Invents Act (AIA), 35 U.S. C. et seq., Congress created three new mecha- —————— I agree with the Court that the Patent Office permissibly applies a “broadest reasonable construction” standard to construe patent claims in inter partes review, and I therefore join Parts I and III of its opinion. 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. nisms for Patent Office review of issued patent claims— inter partes review, post-grant review, and covered busi- ness method patent review (CBM review). This case involves the first of these proceedings, inter partes review. Under inter partes review, anyone may file a petition challenging the patentability of an issued patent claim at almost any time. (c). The grounds for challenge are limited to the patentability of the claim under (which requires patent claims to be novel) and (which requires patent claims to be nonobvious). The statute imposes other restrictions as well. A peti- tion for inter partes review “may be considered only if ” the petition satisfies certain requirements, including (as rele- vant here) that the petition “identif[y], in writing and with particularity, each claim challenged, the grounds on which the challenge to each claim is based, and the evidence that supports the grounds for the challenge to each claim.” Additionally, “inter partes review may not be instituted” if the party challenging the patent previously filed a civil action challenging the patent’s validity or was sued for infringing the patent more than a year before seeking inter partes review. (b). Finally, the Patent Office may not institute inter partes review “unless the Director [of the Patent Office] determines that the information presented in the [challenger’s] petition and any response [by the patent owner] shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least of the claims challenged in the petition.” The statute provides that “[t]he determination by the —————— 2 The Director of the Patent Office has delegated his authority to institute inter partes review to the Patent Trial and Appeal Board (Board), which also conducts and decides the inter partes review. See (a), 42.08 ; 35 U.S. C. 38(a). I there- fore use the term “Patent Office” to refer to the Director, the Board, and the Patent Office generally, as the case may be. Cite as: 579 U. S. (206) 3 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part Director whether to institute an inter partes review under this section shall be final and nonappealable.” If inter partes review is instituted, the Patent Office con- ducts a trial that culminates in a “final written decision” on the patentability of the challenged claims. Any patent owner or challenger that is “dissatisfied” with that decision may appeal to the Federal Circuit. II In this case, the Patent Office instituted inter partes review of claims 0 and 4 of Cuozzo’s patent based on prior art that the challenger’s petition did not cite with respect to those claims. After trial, the Patent Office issued a final written decision holding those claims un- patentable, and Cuozzo appealed that decision to the Federal Circuit. In its appeal, Cuozzo argued (among other things) that the Patent Office had violated the re- quirement that a petition for inter partes review “may be considered only if ” the petition identifies “the grounds on which the challenge to each claim is based, and the evi- dence that supports the grounds for the challenge,” “with particularity.” The Federal Circuit held that it could not entertain this argument because provides that the Patent Of- fice’s decision to institute an inter partes review is “final and nonappealable.” See In re Cuozzo Speed Technolo- gies, LLC, This Court now affirms. I disagree. We have long recognized that “Congress rarely intends to prevent courts from enforcing its direc- tives to federal agencies. For that reason, this Court applies a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. (slip op., at 4) (quoting Bowen v. Michigan Academy of Family Physicians, 670 (986)). While the “presumption is rebuttable,” “the 4 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. agency bears a ‘heavy burden’ in attempting to show that Congress ‘prohibit[ed] all judicial review’ of the agency’s compliance with a legislative mandate.” Mach Mining, at – (slip op., at 4–5) ). If a provision can reasonably be read to permit judicial review, it should be. Our decision in illustrates the power of this presumption. The statute at issue there provided that agency “ ‘decisions concerning [questions of disability and dependency] are final and conclusive and are not subject to review.’ ” The Federal Circuit con- cluded that the statute cut off all judicial review of such decisions, stating that “ ‘[i]t is difficult to conceive of a more clear-cut statement of congressional intent to pre- clude review than one in which the concept of finality is thrice repeated in a single sentence.’ ” We reversed. We acknowledged that the statute “plausibly c[ould] be read as imposing an absolute bar to judicial review,” but we concluded that “it also quite naturally c[ould] be read as precluding review only of factual determinations” underlying the agency’s decision, while permitting review of legal questions. In light of the presumption of reviewability, we adopted the latter read- ing. We observed that “when Congress intends to bar judicial review altogether, it typically employs language far more unambiguous and comprehensive,” giving as an example a statute that made an agency decision “ ‘final and conclusive for all purposes and with respect to all questions of law or fact’ ” and “ ‘not subject to review by another official of the United States or by a court by man- damus or otherwise.’ ” –780, and n. 3.3 —————— 3 The Court tries to recast Lindahl as a decision about “agenc[y] pri- macy” by focusing on its recognition that factual questions were unre- viewable under the relevant statute (no one disputed that) and treating Cite as: 579 U. S. (206) 5 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part This is a far easier case than Lindahl. There is no question that the statute now before us can naturally— perhaps most naturally—be read to permit judicial review of issues bearing on the Patent Office’s institution of inter partes review. Section 34(d) reads: “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” Unlike the statutes we addressed in Lindahl (including the one we found to permit review), does not say that an institution decision is “not subject to review.” Instead, it makes the institution decision “nonappealable.” This is fairly interpreted to bar only an appeal from the in- stitution decision itself, while allowing review of institution- related issues in an appeal from the Patent Office’s final written decision at the end of the proceeding. See Our cases have used the term “nonappealable” in just this way—to refer to matters that are not immediately or independently appealable, but which are subject to review at a later point.4 Thus, while the decision to insti- tute inter partes review is “final and nonappealable” in the sense that a court cannot stop the proceeding from going forward,5 the question whether it was lawful to institute —————— the case’s holding that legal questions were reviewable as an after- thought. Ante, at 0. The review that Lindahl permitted—to correct “a substantial departure from important procedural rights, a misconstruc- tion of the governing legislation, or some like error going to the heart of the administrative determination,” (internal quotation marks omitted)—is quite similar to the review I envision of Patent Office decisions to institute inter partes review, as the discussion that follows makes clear. 4 See Mohawk Industries, 09 (2009) (agreeing with decisions holding that attorney-client privi- lege rulings are “nonappealable” because “postjudgment appeals generally suffice to protect the rights of litigants”); Coopers & Lybrand v. Livesay, (describing an order denying class certification as “nonappealable” but noting that it “is subject to effective review after final judgment”). 5 Like the Court, I do not have occasion to address whether in ex- 6 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. review will not escape judicial scrutiny. This approach is consistent with the normal rule that a party may chal- lenge earlier agency rulings that are themselves “not directly reviewable” when seeking review of a final, ap- pealable decision. 5 U.S. C. And it strikes a sensi- ble balance: The Patent Office may proceed unimpeded with the inter partes review process (which must normally be completed within one year, see 35 U.S. C. but it will be held to account for its compliance with the law at the end of the day. In rejecting this commonsense interpretation, the Court gives short shrift to the presumption in favor of judicial review. Its primary reason for disregarding the presump- tion reduces to an assertion—devoid of any textual analy- sis—that surely must bar review of legal questions related to institution decisions. Ante, at 7–8. As I have explained, the statute’s text does not require that conclusion. Moving (further) away from the statutory text, the Court next objects that allowing judicial review “would undercut one important congressional objective, namely, giving the Patent Office significant power to revisit and revise earlier patent grants.” Ante, at 8. I am not sure that the Court appreciates how remarkable this assertion is. It would give us cause to do away with judicial review whenever we think that review makes it harder for an agency to carry out important work. In any event, the majority’s logic is flawed. Judicial review enforces the limits that Congress has imposed on the agency’s power. It thus serves to buttress, not “undercut,” Congress’s objectives. By asserting otherwise, the majority loses sight of the principle that “no legislation pursues its pur- poses at all costs.” Rodriguez v. United States, 480 U. S. —————— traordinary cases a patent owner might seek mandamus to stop an inter partes review before the proceeding concludes. Cite as: 579 U. S. (206) 7 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part 522, 525–526 (987) (per curiam). “Every statute pur- poses, not only to achieve certain ends, but also to achieve them by particular means—and there is often a consider- able legislative battle over what those means ought to be. The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the two.” Director, Office of Workers’ Compensa- tion The inter partes review statute is no exception. It empowers the Patent Office to clean up bad patents, but it expressly forbids the Patent Office to institute inter partes review—or even consider petitions for inter partes review—unless certain conditions are satisfied. Nothing in the statute suggests that Con- gress wanted to improve patent quality at the cost of fidelity to the law. The Court also observes that the inter partes review appeal provision, “limit[s] appellate review to the ‘final written decision.’ ” Ante, at 8. The majority reads too much into this provision. Section 39 provides simply that “[a] party dissatisfied with the final written decision may appeal the decision.” The statute does not restrict the issues that may be raised in such an appeal. As the Patent Office once explained (before having a change of heart), the “plain language of the statutory text” recognizes a “right of judicial review for any party ‘dissatisfied’ by the [Patent Office’s] ultimate ‘written [decision],’ ” and “[n]othing in the statutory scheme limits the reasons that a party might be so ‘dissatisfied.’ ” Memorandum of Law in Support of Defendant’s Motion to Dismiss in Versata Development Group, Inc. v. Rea, Civ. Action No. :3cv328 (ED Va., May 6, 203), p. 6. A party may be dissatisfied with a final written decision in an inter partes review because the Patent Office lacked authority to institute the proceeding in the first place, or because the Office commit- ted some other error in the lead-up to its final decision. 8 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. Neither nor prevents a party from pressing such issues on an appeal from the final decision. This is familiar practice under 28 U.S. C. which similarly limits appeals to “final decisions of the district courts” but allows appellants to challenge earlier rulings as part of those appeals. See Quackenbush v. Allstate Ins. Co., 57 U.S. 706, 72 (996) (“The general rule is that a party is entitled to a single appeal, to be deferred until final judg- ment has been entered, in which claims of district court error at any stage in the litigation may be ventilated” (internal quotation marks omitted)); 5A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure pp. 250, 252 (2d ed. 992) (noting “the general rule that an appeal from final judgment permits re- view of all rulings that led up to the judgment” and ob- serving that “[t]he variety of orders open to review on subsequent appeal from a final judgment is enormous”). And, as noted above, judicial review of “final agency ac- tion” likewise encompasses earlier rulings that are “not directly reviewable.” 5 U.S. C. see The Court next contends that my interpretation renders 35 U.S. C. “superfluous.” Ante, at 9. Reading the statute to defer review of institution decisions is “unneces- sary,” the Court says, because the “Administrative Proce- dure Act already limits review to final agency decisions” and a “decision to initiate inter partes review is ‘prelimi- nary,’ not ‘final.’ ” But Congress reasonably may have thought that the matter needed clarifying, given that itself calls such a decision “final” (albeit in a dif- ferent sense, see at 5–6). Language is not superflu- ous when it “remove[s] any doubt” about a point that might otherwise be unclear. More important, my reading prevents an appeal from a decision not to institute inter partes review, which is plainly final agency action and so—absent —might otherwise trigger immedi- Cite as: 579 U. S. (206) 9 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part ate review. The Court asserts that this too is unnecessary because, in its view, a decision to deny inter partes review is “committed to agency discretion by law” and so unre- viewable under normal principles of administrative law. 5 U.S. C. see ante, at 9. I agree that one can infer from the statutory scheme that the Patent Office has discretion to deny inter partes review even if a challenger satisfies the threshold requirements for review. But the law does not say so directly and Congress may not have thought the point self-evident. Again, 35 U.S. C. plays a clarifying role. This gives the provision plenty of work to do. There is no need to read it more broadly.6 III A None of this is to say that courts must—or should— throw out an inter partes review decision whenever there is some technical deficiency in the challenger’s petition or in the Patent Office’s institution decision. Although does not preclude review of issues bearing on institution, normal limits on judicial review still apply. For example, errors that do not cause a patent owner prejudice may not warrant relief. See 5 U.S. C. (“[D]ue account shall be taken of the rule of prejudicial error”). Some errors may also be superseded by later —————— 6 It is true that my interpretation leaves no apparent avenue (short of mandamus, at least) for judicial review of decisions not to institute inter partes review. This demonstrates that the presumption of re- viewability has its limits. Nor is it surprising that Congress would design such a scheme. A patent challenger does not have nearly as much to lose from an erroneous denial of inter partes review as a patent owner stands to lose from an erroneous grant of inter partes review. Although such a challenger loses some of the advantages of inter partes review (such as a more favorable claim construction stand- ard and a lower burden of proof), it remains free to challenge the patent’s validity in litigation. A patent owner, on the other hand, risks the destruction of a valuable property right. 0 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. developments. Most notably, once the Patent Office issues its final written decision, the probabilistic question whether a challenger is “reasonabl[y] likel[y]” to prevail on the merits, 35 U.S. C. will be subsumed by the ultimate question whether the challenger should in fact prevail.7 And while I have no occasion here to decide the matter, it may be that courts owe some degree of deference to the Patent Office’s application of the statutory prereq- uisites to inter partes review. I would leave these considerations for the Court of Appeals to address in the first instance. But I must con- fess doubts that Cuozzo could ultimately prevail. As noted above, Cuozzo argues that the Patent Office improperly granted inter partes review of claims 0 and 4 on grounds not asserted in the petition for inter partes re- view, in violation of the statutory requirement that a petition must state the grounds for challenge “with partic- ularity.” The problem for Cuozzo is that claim 7—which the petition properly challenged—incorporates all of the elements of claims 0 and 4. Accordingly, an assertion that claim 7 is unpatentable in light of certain prior art is necessarily an assertion that claims 0 and 4 are unpatentable as well. Assuming that Cuozzo must show prejudice from the error it alleges, it is hard to see how Cuozzo could do so here. —————— 7 The Court recognizes that such issues are unreviewable even absent a statute like comparing the Patent Office’s “reasonable likelihood” determination to an indicting grand jury’s finding of proba- ble cause. See ante, at 9. But it draws the wrong analogy for this case. Cuozzo’s complaint is that the petition for inter partes review did not articulate its challenge to certain patent claims with adequate particu- larity. This is more akin to an argument that an indictment did not sufficiently allege an offense and provide notice of the charges against the defendant, which is reviewable after trial and judgment. See, e.g., United (overturning a conviction based on the insufficiency of the indictment). Cite as: 579 U. S. (206) ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part B But any perceived weakness in the merits of Cuozzo’s appeal does not mean that such issues are unworthy of judicial review. Section 32(a)(3)’s particularity require- ment is designed, at least in part, to ensure that a patent owner has sufficient notice of the challenge against which it must defend. Once inter partes review is instituted, the patent owner’s response—its opening brief, essentially—is filed as an opposition to the challenger’s petition. See Thus, if a petition fails to state its challenge with particularity—or if the Patent Office institutes review on claims or grounds not raised in the petition—the patent owner is forced to shoot into the dark. The potential for unfairness is obvious. Other problems arise if the Patent Office fails to enforce the prohibitions against instituting inter partes review at the behest of challengers that have already sued to invali- date the patent or that were sued for infringement more than a year before seeking inter partes review. 35 U.S. C. (b). Allowing such a challenge exposes the patent owner to the burden of multiplicative proceed- ings—including discovery in both forums, see while permitting the challenger to exploit inter partes review’s lower standard of proof and more favorable claim construction standard. Congress understandably thought that the Patent Office’s power should not be wielded in this way. Yet, according to the Court, Congress made courts powerless to correct such abuses. Even more striking are the consequences that today’s decision portends for the AIA’s other patent review mech- anisms, post-grant review and CBM review, see at –2, which are subject to a “no appeal” provision virtually identical to See (“The determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable”); see AIA note following 35 U.S. C. 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. p. 442 (CBM review generally “shall be regarded as, and shall employ the standards and procedures of, a post-grant review”). Post-grant review and CBM review allow for much broader review than inter partes review. While inter partes review is limited to assessing patent- ability under and in post-grant review and CBM review, patent claims can also be scrutinized (and can- celed) on any invalidity ground that may be raised as a defense to infringement, including such grounds as ineli- gible subject matter under indefiniteness under and improper enlargement of reissued claims under See (3). But this broader re- view comes with its own strict limits. A petition for post- grant review must be filed within nine months after a patent is granted. And while CBM review is not subject to this time limit, Congress imposed a subject- matter restriction: The Patent Office “may institute a [CBM review] proceeding only for a patent that is a cov- ered business method patent,” which Congress defined to cover certain patents with claims relating to “a financial product or service.” AIA (d)(), at 442; see ibid.8 Congress thus crafted a three-tiered framework for Patent Office review of issued patents: broad post-grant review in a patent’s infancy, followed by narrower inter partes review thereafter, with a limited exception for broad review of older covered business method patents. Today’s decision threatens to undermine that carefully designed scheme. Suppose that the Patent Office instituted post-grant review on a petition filed 2 months (or even 2 years) after a patent was issued, and then invalidated a patent claim as indefinite under ground available —————— 8 Additionally, a challenger may file a petition for CBM review only if it has been sued for or charged with infringement of the patent. AIA at 442. Cite as: 579 U. S. (206) 3 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part in post-grant review but not in inter partes review. This would grossly exceed the Patent Office’s authority and would be manifestly prejudicial to the patent owner. Can Congress really have intended to shield such shenanigans from judicial scrutiny? The Court answers with a non sequitur: Of course the Patent Office cannot cancel a patent under “in inter partes review.” Ante, at The Court seems to think that we could overturn the Patent Office’s decision to institute “post-grant review” based on an untimely petition and declare that the agency has really instituted only “inter partes review.” But how is that possible under today’s opinion? After all, the peti- tion’s timeliness, no less than the particularity of its alle- gations, is “closely tied to the application and interpreta- tion of statutes related to the Patent Office’s decision to initiate review,” and the Court says that such ques- tions are unreviewable. ; see To take things a step further, suppose that the Patent Office purported to forgive the post-grant review petition’s tardiness by declaring the challenged patent a “covered business method patent,” even though the patent has nothing to do with financial products or services (it claims, say, a new kind of tempered glass). Again, this involves the application of statutes related to the Patent Office’s institution decision. See AIA at 442 (Patent Office “may institute a [CBM review] proceeding only for a patent that is a covered business method patent”). So is this specious determination immune from judicial scrutiny under the Court’s reasoning? If judicial review of these issues is unavailable, then nothing would prevent the Patent Office from effectively collapsing Congress’s three-tiered review structure and subjecting all patents to broad post-grant review at all times. Congress cannot have intended that. I take the Court at its word that today’s opinion will not permit the Patent Office “to act outside its statutory lim- 4 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. its” in these ways. Ante, at But how to get there from the Court’s reasoning—and how to determine which “stat- utory limits” we should enforce and which we should not— remains a mystery. I would avoid the suspense and hold that 35 U.S. C. does not bar judicial review of the Patent Office’s compliance with any of the limits Congress imposed on the institution of patent review proceedings. That includes the statutory limit, that Cuozzo alleges was violated here. * * * In enacting the AIA, Congress entrusted the Patent Office with a leading role in combating the detrimental effect that bad patents can have on innovation. But Con- gress did not give the agency unbridled authority. The principles I have set forth afford the Patent Office plenty of latitude to carry out its charge, while ensuring that the Office’s actions—no less than the patents it reviews—stay within the bounds of the law. I would vacate the Federal Circuit’s judgment and remand for that court to consider whether the Patent Office exceeded its authority to institute inter partes review with respect to claims 0 and 4 of Cuozzo’s patent. With respect to claim 7, I agree with the Court that the judgment below must be affirmed. See n. Part III, ante

Justice Stevens

majority

Atchison, T. & SFR Co. v. Buell

https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/

https://www.courtlistener.com/api/rest/v3/clusters/111843/

1986-056

A railroad has a duty to use reasonable care in furnishing its employees with a safe place to work. That duty was recognized at common law, see Bailey v. Central Vermont R. Co., 319 U.S. 350, 352-353 (1943), is given force through the Federal Employers' Liability Act (FELA), 45 U.S. C. § 51 et seq., and is confirmed in some, if not all, collective-bargaining agreements. Breaches of the duty may at times give rise to typical labor disputes for which the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U.S. C. § 151 et seq., sets forth binding arbitration procedures. *559 Breaches may also result in injuries to a railroad's employees — injuries for which the FELA would appear to give employees a cause of action for damages. The question in this case is whether the possibility of pursuing a labor grievance under the RLA deprives an employee of his right to bring an FELA action. I Respondent, a carman employed by petitioner, the Atchison, Topeka and Santa Fe Railway Company (Railroad), filed an FELA complaint in Federal District Court, alleging that he had suffered severe personal injuries as a result of the Railroad's failure "to provide [him] with a safe place to work, including, but not limited to, having fellow employees harass, threaten, intimidate [him], and in particular, foreman Ed Wright threatened, harassed, and intimidated [him] maliciously and oppressively, negligently, and intentionally, in order to cause personal injury to [him] and to cause mental and emotional suffering. All said acts were condoned and approved by [the Railroad] and as a direct and proximate result of said negligence and intentional acts, [he] was caused to suffer an emotional breakdown, thus inflicting on [him] injuries and damages as hereinafter alleged." App. 7. The Railroad filed an answer, asserting, among other defenses, that respondent's sole remedy was before the National Railroad Adjustment Board (Adjustment Board) pursuant to the RLA. Id., at 10-13. Through the ensuing discovery, the Railroad identified various incidents of harassment that were embraced within the complaint's allegations,[1] and also established that its *560 collective-bargaining agreement with respondent's union allowed an employee to prosecute a grievance through successive levels of appeal up to and including mutually binding arbitration before the Adjustment Board.[2] Discovery also brought out that respondent had suffered a mental breakdown, and certain associated physical disorders, that required his hospitalization for 17 days. The Railroad then moved for dismissal or for summary judgment. The ground for its motion, in the Railroad's own words, was that "there is no subject matter jurisdiction in the district court to entertain an action concerning a labor dispute between a `carrier' subject to the Railway Labor Act and its employees." Record Doc. No. 42, p. 6. The District Court accepted this argument, and granted summary judgment on "the narrow question of the availability to an employee covered by the RLA of an FELA remedy based on an alleged negligent failure to maintain a safe workplace." App. to Pet. for Cert. 11a. The Court of Appeals reversed. It held that respondent's claims were not arbitrable under the RLA, and that an FELA action was therefore not precluded. 771 F.2d 1320, 1323-1324 (CA9 1985). Additionally, although the question had neither been raised by the parties[3] nor addressed by the District Court,[4] the Court of *561 Appeals proclaimed that a relevant "issue, one of first impression in this circuit, is whether a Railroad employee's wholly mental injury stemming from his railroad employment is compensable under the [FELA]." Id., at 1321. The Court of Appeals concluded that the FELA does authorize recovery for emotional injury. Because of the important role these two statutes play in railway labor relations, we granted certiorari. 476 U.S. 1103 (1986). II In 1906,[5] Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. The Act expressly prohibits covered carriers from adopting any regulation, or entering into any contract, to limit their FELA liability.[6] The coverage of the statute is defined in broad language,[7] which *562 has been construed even more broadly.[8] We have recognized generally that the FELA is a broad remedial statute, and have adopted a "standard of liberal construction in order to accomplish [Congress'] objects." Urie v. Thompson, 337 U.S. 163, 180 (1949). The RLA, by contrast, provides a comprehensive framework for the resolution of labor disputes in the railroad industry. Enacted in 1926, the text of the RLA does not mention the FELA or otherwise deal with the subject of tort liability. Rather, the RLA establishes elaborate administrative procedures for the resolution of both major and minor labor disputes.[9] The statutory procedures for resolving "major *563 disputes" — those arising "out of the formation or change of collective [bargaining] agreements covering rates of pay, rules, or working conditions," Detroit & T. S. L. R. Co. v. Transportation Union, 396 U.S. 142, 145, n. 7 (1969) — are not relevant to this case. The "minor dispute" provisions are relevant, however, because the Railroad argues that the underlying dangerous condition in this case could have been grieved as a minor dispute — one "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions," 45 U.S. C. § 153, First (i). Minor dispute initially must be dealt with through a railroad's internal dispute resolution processes, and if not settled there, may be submitted to a division of the Adjustment Board, or to a Public Law Board, which is an arbitration board chosen by the parties. Judicial review of these Boards' determinations has been characterized as " `among the narrowest known to the law.' " Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 91 (1978) (citation omitted). The Railroad makes three arguments in support of its contention that respondent may not bring an FELA action for his injuries. First, it argues that the exclusive forum for any dispute arising out of workplace conditions is the RLA. Second, it argues that even if many workplace injuries are actionable under the FELA, emotional injuries should not be actionable because of their close relationship to minor disputes that are to be brought under the RLA. Finally, the Railroad responds to the Court of Appeals' discussion of whether the term "injury" as used in the FELA includes purely emotional injury, and argues that it does not. We reject the Railroad's first two arguments.[10] As for the third *564 argument, which focuses on the scope of the FELA, we believe that the record is insufficiently developed at this preliminary stage to allow us, or the Court of Appeals, to express an opinion on respondent's ultimate chances of recovery under the FELA. III The Railroad asserts first that employees have the right to have defects in the workplace corrected by resorting to the grievance machinery that is in place pursuant to the RLA, and that the RLA is the exclusive remedy for such minor disputes. Indeed, in this case, preliminary though abortive steps in that direction were actually taken. Thus, the Railroad argues that an FELA action for damages is barred. We find no merit in this argument. The fact that an injury otherwise compensable under the FELA was caused by conduct that may have been subject to arbitration under the RLA does not deprive an employee of his opportunity to bring an FELA action for damages. Presumably a host of personal injuries suffered by railroad employees are caused by negligent practices and conditions that might have been cured or avoided by the timely invocation of the grievance machinery.[11] See Yawn v. Southern R. Co., 591 F.2d 312, 317 (CA5 1979). But we have never considered that possibility a bar to an employee's bringing an FELA claim for personal injuries, and the Railroad has not persuaded us to do so now. This Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e. g., McDonald v. West Branch, 466 U.S. 284 *565 (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration, "different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers." Barrentine, supra, at 737. This principle is instructive on the question before us. The FELA not only provides railroad workers with substantive protection against negligent conduct that is independent of the employer's obligations under its collective-bargaining agreement, but also affords injured workers a remedy suited to their needs, unlike the limited relief that seems to be available through the Adjustment Board.[12] It is inconceivable that Congress intended that a worker who suffered a disabling injury would be denied recovery under the FELA simply because he might also be able to process a narrow labor grievance under the RLA to a successful conclusion. As then District Judge J. Skelly Wright concluded, "the Railway Labor Act . . . has no application to a claim for damages to the employee resulting from the negligence of an employer railroad." Barnes v. Public Belt R. R. Comm'n for City of New York, 101 F. Supp. 200, 203 (ED La. 1951). It is true that the RLA remedy for the resolution of minor disputes is "in at least some situations" exclusive. Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 325 (1972). *566 In Andrews, an employee brought a state wrongful discharge claim based squarely on an alleged breach of the collective-bargaining agreement. We held that Congress had intended the RLA dispute resolution mechanism to be mandatory for that type of dispute, and that courts were therefore foreclosed from addressing claims that properly arise under the RLA. In this case, by contrast, Congress has enacted the FELA to serve as the statutory basis for the award of damages to employees injured through an employer's or coworker's negligence. Unwilling to rely solely on the argument that any injury caused by a condition that could have been the subject of a grievance under the RLA is not actionable under the FELA, petitioner and various amici argue, in the alternative, that the RLA requires that a narrow "emotional injury" exception be carved out of the FELA. Because they fear that many workers alleging emotional injuries are really complaining of unhappiness arising out of everyday workplace disputes, they ask us to hold that the RLA provides the exclusive remedy for this ill-defined class of injuries. Even if we were to find some authority allowing us to rewrite the FELA in this manner, we are not persuaded that it would be appropriate to do so. There is no basis for assuming that allowing FELA actions for emotional injury will wreak havoc with the general scheme of RLA arbitration,[13] and absent an intolerable *567 conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA. See Morton v. Mancari, 417 U.S. 535, 550 (1974). Although we do not decide today whether purely emotional injuries are cognizable under the FELA, we stress that it is the FELA that controls that inquiry, not the RLA. As far as a worker's right to damages under the FELA is concerned, Congress' enactment of the RLA has had no effect. IV The Railroad also contends that the judgment of the Court of Appeals should be reversed because it erroneously concluded that a railroad employee's "wholly mental injury" is compensable under the FELA. The problem with our addressing this argument is that, because of the posture in which this case comes before us, the record has never been developed on the exact nature of the allegedly tortious activity, or the extent of the injuries that respondent claims to have suffered. As we have mentioned, petitioner's motion for dismissal or for summary judgment was based on the sole ground that an employee's exclusive remedy for a railroad's failure to maintain a safe workplace is to file a grievance *568 under the RLA.[14] Respondent's memorandum, of course, sought to respond to that narrow argument alone, and did not deal with the question whether emotional injury is actionable under the FELA.[15] The question whether "emotional injury" is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common-law developments, see Urie v. Thompson, 337 U. S., at 174, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity. For example, while most States now recognize a tort of intentional infliction of emotional distress,[16] they vary in the degree of intent required to *569 establish liability,[17] and the level of physical manifestation of the emotional injury required to support recovery.[18] Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.[19] In addition, although many States have now recognized a tort of negligent infliction of emotional distress,[20] they too vary in the degree of objective symptomatology *570 the victim must demonstrate.[21] These issues are only exemplary of the doctrinal divergences in this area. In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive "yes" or "no" answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand. Since, through no fault of either party, we do not know what all those facts are in this case, we cannot begin to decide whether respondent will be able to support his allegation that petitioners are liable to him under the FELA.[22] Given the posture of the case, there was no reason for the Court of Appeals to express an opinion on this issue. Without agreeing or disagreeing with the merits of the Court of Appeals' discussion of the emotional injury issue, we affirm its judgment *571 only to the extent that it rejects the RLA preclusion argument advanced by the Railroad. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

A railroad has a duty to use reasonable care in furnishing its employees with a safe place to work. That duty was recognized at common law, see is given force through the Federal Employers' Liability Act (FELA), 45 U.S. C. 51 et seq., and is confirmed in some, if not all, collective-bargaining agreements. Breaches of the duty may at times give rise to typical labor disputes for which the Railway Labor Act (RLA), as amended, 45 U.S. C. 151 et seq., sets forth binding arbitration procedures. *559 Breaches may also result in injuries to a railroad's employees — injuries for which the FELA would appear to give employees a cause of action for damages. The question in this case is whether the possibility of pursuing a labor grievance under the RLA deprives an employee of his right to bring an FELA action. I Respondent, a carman employed by petitioner, the Atchison, Topeka and Santa Fe Railway Company (Railroad), filed an FELA complaint in Federal District Court, alleging that he had suffered severe personal injuries as a result of the Railroad's failure "to provide [him] with a safe place to work, including, but not limited to, having fellow employees harass, threaten, intimidate [him], and in particular, foreman Ed Wright threatened, harassed, and intimidated [him] maliciously and oppressively, negligently, and intentionally, in order to cause personal injury to [him] and to cause mental and emotional suffering. All said acts were condoned and approved by [the Railroad] and as a direct and proximate result of said negligence and intentional acts, [he] was caused to suffer an emotional breakdown, thus inflicting on [him] injuries and damages as hereinafter alleged." App. 7. The Railroad filed an answer, asserting, among other defenses, that respondent's sole remedy was before the National Railroad Adjustment Board (Adjustment Board) pursuant to the RLA. Through the ensuing discovery, the Railroad identified various incidents of harassment that were embraced within the complaint's allegations,[1] and also established that its *560 collective-bargaining agreement with respondent's union allowed an employee to prosecute a grievance through successive levels of appeal up to and including mutually binding arbitration before the Adjustment Board.[2] Discovery also brought out that respondent had suffered a mental breakdown, and certain associated physical disorders, that required his hospitalization for 17 days. The Railroad then moved for dismissal or for summary judgment. The ground for its motion, in the Railroad's own words, was that "there is no subject matter jurisdiction in the district court to entertain an action concerning a labor dispute between a `carrier' subject to the Railway Labor Act and its employees." Record Doc. No. 42, p. 6. The District Court accepted this argument, and granted summary judgment on "the narrow question of the availability to an employee covered by the RLA of an FELA remedy based on an alleged negligent failure to maintain a safe workplace." App. to Pet. for Cert. 11a. The Court of Appeals reversed. It held that respondent's claims were not arbitrable under the RLA, and that an FELA action was therefore not precluded. Additionally, although the question had neither been raised by the parties[3] nor addressed by the District Court,[4] the Court of *561 Appeals proclaimed that a relevant "issue, one of first impression in this circuit, is whether a Railroad employee's wholly mental injury stemming from his railroad employment is compensable under the [FELA]." The Court of Appeals concluded that the FELA does authorize recovery for emotional injury. Because of the important role these two statutes play in railway labor relations, we granted certiorari. II In 1906,[5] Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. The Act expressly prohibits covered carriers from adopting any regulation, or entering into any contract, to limit their FELA liability.[6] The coverage of the statute is defined in broad language,[7] which *562 has been construed even more broadly.[8] We have recognized generally that the FELA is a broad remedial statute, and have adopted a "standard of liberal construction in order to accomplish [Congress'] objects." The RLA, by contrast, provides a comprehensive framework for the resolution of labor disputes in the railroad industry. Enacted in 1926, the text of the RLA does not mention the FELA or otherwise deal with the subject of tort liability. Rather, the RLA establishes elaborate administrative procedures for the resolution of both major and minor labor disputes.[9] The statutory procedures for resolving "major *563 disputes" — those arising "out of the formation or change of collective [bargaining] agreements covering rates of pay, rules, or working conditions," Detroit & T. S. L. R. — are not relevant to this case. The "minor dispute" provisions are relevant, however, because the Railroad argues that the underlying dangerous condition in this case could have been grieved as a minor dispute — one "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions," 45 U.S. C. 153, First (i). Minor dispute initially must be dealt with through a railroad's internal dispute resolution processes, and if not settled there, may be submitted to a division of the Adjustment Board, or to a Public Law Board, which is an arbitration board chosen by the parties. Judicial review of these Boards' determinations has been characterized as " `among the narrowest known to the law.' " Union Pacific R. The Railroad makes three arguments in support of its contention that respondent may not bring an FELA action for his injuries. First, it argues that the exclusive forum for any dispute arising out of workplace conditions is the RLA. Second, it argues that even if many workplace injuries are actionable under the FELA, emotional injuries should not be actionable because of their close relationship to minor disputes that are to be brought under the RLA. Finally, the Railroad responds to the Court of Appeals' discussion of whether the term "injury" as used in the FELA includes purely emotional injury, and argues that it does not. We reject the Railroad's first two arguments.[10] As for the third *564 argument, which focuses on the scope of the FELA, we believe that the record is insufficiently developed at this preliminary stage to allow us, or the Court of Appeals, to express an opinion on respondent's ultimate chances of recovery under the FELA. III The Railroad asserts first that employees have the right to have defects in the workplace corrected by resorting to the grievance machinery that is in place pursuant to the RLA, and that the RLA is the exclusive remedy for such minor disputes. Indeed, in this case, preliminary though abortive steps in that direction were actually taken. Thus, the Railroad argues that an FELA action for damages is barred. We find no merit in this argument. The fact that an injury otherwise compensable under the FELA was caused by conduct that may have been subject to arbitration under the RLA does not deprive an employee of his opportunity to bring an FELA action for damages. Presumably a host of personal injuries suffered by railroad employees are caused by negligent practices and conditions that might have been cured or avoided by the timely invocation of the grievance machinery.[11] See 5 F.2d 312, But we have never considered that possibility a bar to an employee's bringing an FELA claim for personal injuries, and the Railroad has not persuaded us to do so now. This Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e. g., ; ; Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration, "different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers." Barrentine, This principle is instructive on the question before us. The FELA not only provides railroad workers with substantive protection against negligent conduct that is independent of the employer's obligations under its collective-bargaining agreement, but also affords injured workers a remedy suited to their needs, unlike the limited relief that seems to be available through the Adjustment Board.[12] It is inconceivable that Congress intended that a worker who suffered a disabling injury would be denied recovery under the FELA simply because he might also be able to process a narrow labor grievance under the RLA to a successful conclusion. As then District Judge J. Skelly Wright concluded, "the Railway Labor Act has no application to a claim for damages to the employee resulting from the negligence of an employer railroad." It is true that the RLA remedy for the resolution of minor disputes is "in at least some situations" exclusive. *566 In Andrews, an employee brought a state wrongful discharge claim based squarely on an alleged breach of the collective-bargaining agreement. We held that Congress had intended the RLA dispute resolution mechanism to be mandatory for that type of dispute, and that courts were therefore foreclosed from addressing claims that properly arise under the RLA. In this case, by contrast, Congress has enacted the FELA to serve as the statutory basis for the award of damages to employees injured through an employer's or coworker's negligence. Unwilling to rely solely on the argument that any injury caused by a condition that could have been the subject of a grievance under the RLA is not actionable under the FELA, petitioner and various amici argue, in the alternative, that the RLA requires that a narrow "emotional injury" exception be carved out of the FELA. Because they fear that many workers alleging emotional injuries are really complaining of unhappiness arising out of everyday workplace disputes, they ask us to hold that the RLA provides the exclusive remedy for this ill-defined class of injuries. Even if we were to find some authority allowing us to rewrite the FELA in this manner, we are not persuaded that it would be appropriate to do so. There is no basis for assuming that allowing FELA actions for emotional injury will wreak havoc with the general scheme of RLA arbitration,[13] and absent an intolerable *567 conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA. See Although we do not decide today whether purely emotional injuries are cognizable under the FELA, we stress that it is the FELA that controls that inquiry, not the RLA. As far as a worker's right to damages under the FELA is concerned, Congress' enactment of the RLA has had no effect. IV The Railroad also contends that the judgment of the Court of Appeals should be reversed because it erroneously concluded that a railroad employee's "wholly mental injury" is compensable under the FELA. The problem with our addressing this argument is that, because of the posture in which this case comes before us, the record has never been developed on the exact nature of the allegedly tortious activity, or the extent of the injuries that respondent claims to have suffered. As we have mentioned, petitioner's motion for dismissal or for summary judgment was based on the sole ground that an employee's exclusive remedy for a railroad's failure to maintain a safe workplace is to file a grievance *568 under the RLA.[14] Respondent's memorandum, of course, sought to respond to that narrow argument alone, and did not deal with the question whether emotional injury is actionable under the FELA.[15] The question whether "emotional injury" is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common-law developments, see U. S., at 174, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity. For example, while most States now recognize a tort of intentional infliction of emotional distress,[16] they vary in the degree of intent required to *569 establish liability,[17] and the level of physical manifestation of the emotional injury required to support recovery.[18] Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.[19] In addition, although many States have now recognized a tort of negligent infliction of emotional distress,[20] they too vary in the degree of objective symptomatology *570 the victim must demonstrate.[21] These issues are only exemplary of the doctrinal divergences in this area. In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive "yes" or "no" answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand. Since, through no fault of either party, we do not know what all those facts are in this case, we cannot begin to decide whether respondent will be able to support his allegation that petitioners are liable to him under the FELA.[22] Given the posture of the case, there was no reason for the Court of Appeals to express an opinion on this issue. Without agreeing or disagreeing with the merits of the Court of Appeals' discussion of the emotional injury issue, we affirm its judgment *571 only to the extent that it rejects the RLA preclusion argument advanced by the Railroad. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

per_curiam

per_curiam

Cook v. Hudson

https://www.courtlistener.com/opinion/109567/cook-v-hudson/

https://www.courtlistener.com/api/rest/v3/clusters/109567/

1976-022

Certiorari was granted to consider the question presented: whether, consistently with the First and Fourteenth Amendments, a Mississippi public school board may terminate the employment of teachers sending their children not to public schools, but to a private racially segregated school. However, since the grant of certiorari, Runyon v. McCrary, 427 U.S. 160 (1976), held that 42 U.S. C. § 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes. Moreover, a Mississippi statute, Miss. Code Ann. § 37-9-59 (Supp. 1976), enacted in 1974 after the school board action here complained of, prohibits school boards "from denying employment or reemployment to any person . . . for the single reason that any eligible child of such person *166 does not attend the school system in which such [person] is employed." Though § 37-9-59 was cited in the record at the time of granting the writ, examination of the merits on oral argument in light of Runyon v. McCrary and § 37-9-59 satisfies us that the grant was improvident. Accordingly, the writ of certiorari is dismissed as improvidently granted. Cf. Rice v. Sioux City Cemetery, 349 U.S. 70 (1955). MR. CHIEF JUSTICE BURGER, concurring in the result. I join in the Court's disposition of this case. In doing so, I emphasize that our decision to dismiss the writ of certiorari as improvidently granted intimates no view on the question of when, if ever, public school teachers—or any comparable public employees—may be required, as a condition of their employment, to enroll their children in any particular school or refrain from sending them to a school which they, as parents, in their sole discretion, consider desirable. Few familial decisions are as immune from governmental interference as parents' choice of a school for their children, so long as the school chosen otherwise meets the educational standards imposed by the State. See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Wisconsin v. Yoder, 406 U.S. 205 (1972).

Certiorari was granted to consider the question presented: whether, consistently with the First and Fourteenth Amendments, a Mississippi public school board may terminate the employment of teachers sending their children not to public schools, but to a private racially segregated school. However, since the grant of certiorari, held that 42 U.S. C. 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes. Moreover, a Mississippi statute, Miss. Code Ann. 37-9-59 enacted in 1974 after the school board action here complained of, prohibits school boards "from denying employment or reemployment to any person for the single reason that any eligible child of such person *166 does not attend the school system in which such [person] is employed." Though 37-9-59 was cited in the record at the time of granting the writ, examination of the merits on oral argument in light of and 37-9-59 satisfies us that the grant was improvident. Accordingly, the writ of certiorari is dismissed as improvidently granted. Cf. MR. CHIEF JUSTICE BURGER, concurring in the result. I join in the Court's disposition of this case. In doing so, I emphasize that our decision to dismiss the writ of certiorari as improvidently granted intimates no view on the question of when, if ever, public school teachers—or any comparable public employees—may be required, as a condition of their employment, to enroll their children in any particular school or refrain from sending them to a school which they, as parents, in their sole discretion, consider desirable. Few familial decisions are as immune from governmental interference as parents' choice of a school for their children, so long as the school chosen otherwise meets the educational standards imposed by the State. See ; ;

Justice Powell

majority

Dirks v. SEC

https://www.courtlistener.com/opinion/111009/dirks-v-sec/

https://www.courtlistener.com/api/rest/v3/clusters/111009/

1982-152

Petitioner Raymond Dirks received material nonpublic information from "insiders" of a corporation with which he had no connection. He disclosed this information to investors who relied on it in trading in the shares of the corporation. The question is whether Dirks violated the antifraud provisions of the federal securities laws by this disclosure. I In 1973, Dirks was an officer of a New York broker-dealer firm who specialized in providing investment analysis of insurance company securities to institutional investors.[1] On *649 March 6, Dirks received information from Ronald Secrist, a former officer of Equity Funding of America. Secrist alleged that the assets of Equity Funding, a diversified corporation primarily engaged in selling life insurance and mutual funds, were vastly overstated as the result of fraudulent corporate practices. Secrist also stated that various regulatory agencies had failed to act on similar charges made by Equity Funding employees. He urged Dirks to verify the fraud and disclose it publicly. Dirks decided to investigate the allegations. He visited Equity Funding's headquarters in Los Angeles and interviewed several officers and employees of the corporation. The senior management denied any wrongdoing, but certain corporation employees corroborated the charges of fraud. Neither Dirks nor his firm owned or traded any Equity Funding stock, but throughout his investigation he openly discussed the information he had obtained with a number of clients and investors. Some of these persons sold their holdings of Equity Funding securities, including five investment advisers who liquidated holdings of more than $16 million.[2] While Dirks was in Los Angeles, he was in touch regularly with William Blundell, the Wall Street Journal's Los Angeles bureau chief. Dirks urged Blundell to write a story on the fraud allegations. Blundell did not believe, however, that such a massive fraud could go undetected and declined to *650 write the story. He feared that publishing such damaging hearsay might be libelous. During the 2-week period in which Dirks pursued his investigation and spread word of Secrist's charges, the price of Equity Funding stock fell from $26 per share to less than $15 per share. This led the New York Stock Exchange to halt trading on March 27. Shortly thereafter California insurance authorities impounded Equity Funding's records and uncovered evidence of the fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against Equity Funding[3] and only then, on April 2, did the Wall Street Journal publish a front-page story based largely on information assembled by Dirks. Equity Funding immediately went into receivership.[4] The SEC began an investigation into Dirks' role in the exposure of the fraud. After a hearing by an Administrative Law Judge, the SEC found that Dirks had aided and abetted violations of § 17(a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U.S. C. § 77q(a),[5] § 10(b) of the Securities *651 Exchange Act of 1934, 48 Stat. 891, 15 U.S. C. § 78j(b),[6] and SEC Rule 10b-5, 17 CFR § 240.10b-5 (1983),[7] by repeating the allegations of fraud to members of the investment community who later sold their Equity Funding stock. The SEC concluded: "Where `tippees' — regardless of their motivation or occupation — come into possession of material `corporate information that they know is confidential and know or should know came from a corporate insider,' they must either publicly disclose that information or refrain from trading." 21 S.E. C. Docket 1401, 1407 (1981) (footnote omitted) (quoting Chiarella v. United States, 445 U.S. 222, 230, n. 12 (1980)). Recognizing, however, that Dirks "played an important role in bringing [Equity Funding's] massive fraud *652 to light," 21 S.E. C. Docket, at 1412,[8] the SEC only censured him.[9] Dirks sought review in the Court of Appeals for the District of Columbia Circuit. The court entered judgment against Dirks "for the reasons stated by the Commission in its opinion." App. to Pet. for Cert. C-2. Judge Wright, a member of the panel, subsequently issued an opinion. Judge Robb concurred in the result and Judge Tamm dissented; neither filed a separate opinion. Judge Wright believed that "the obligations of corporate fiduciaries pass to all those to whom they disclose their information before it has been disseminated to the public at large." 220 U. S. App. D. C. 309, 324, 681 F.2d 824, 839 (1982). Alternatively, Judge Wright concluded that, as an employee of a broker-dealer, Dirks had violated "obligations to the SEC and to the public completely independent of any obligations he acquired" as a result of receiving the information. Id., at 325, 681 F.2d, at 840. In view of the importance to the SEC and to the securities industry of the question presented by this case, we granted a writ of certiorari. 459 U.S. 1014 (1982). We now reverse. *653 II In the seminal case of In re Cady, Roberts & Co., 40 S.E. C. 907 (1961), the SEC recognized that the common law in some jurisdictions imposes on "corporate `insiders,' particularly officers, directors, or controlling stockholders" an "affirmative duty of disclosure . . . when dealing in securities." Id., at 911, and n. 13.[10] The SEC found that not only did breach of this common-law duty also establish the elements of a Rule 10b-5 violation,[11] but that individuals other than corporate insiders could be obligated either to disclose material nonpublic information[12] before trading or to abstain from trading altogether. Id., at 912. In Chiarella, we accepted the two elements set out in Cady, Roberts for establishing a Rule 10b-5 violation: "(i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information *654 by trading without disclosure." 445 U.S., at 227. In examining whether Chiarella had an obligation to disclose or abstain, the Court found that there is no general duty to disclose before trading on material nonpublic information,[13] and held that "a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information." Id., at 235. Such a duty arises rather from the existence of a fiduciary relationship. See id., at 227-235. Not "all breaches of fiduciary duty in connection with a securities transaction," however, come within the ambit of Rule 10b-5. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 472 (1977). There must also be "manipulation or deception." Id., at 473. In an inside-trading case this fraud derives from the "inherent unfairness involved where one takes advantage" of "information intended to be available only for a corporate purpose and not for the personal benefit of anyone." In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E. C. 933, 936 (1968). Thus, an insider will be liable under Rule 10b-5 for inside trading only where he fails to disclose material nonpublic information before trading on it and thus makes "secret profits." Cady, Roberts, supra, at 916, n. 31. III We were explicit in Chiarella in saying that there can be no duty to disclose where the person who has traded on inside information "was not [the corporation's] agent, . . . was not a fiduciary, [or] was not a person in whom the sellers [of the securities] had placed their trust and confidence." 445 U.S., at 232. Not to require such a fiduciary relationship, we recognized, would "depar[t] radically from the established doctrine that duty arises from a specific relationship between *655 two parties" and would amount to "recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information." Id., at 232, 233. This requirement of a specific relationship between the shareholders and the individual trading on inside information has created analytical difficulties for the SEC and courts in policing tippees who trade on inside information. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships.[14] In view of this absence, it has been unclear how a tippee acquires the Cady, Roberts duty to refrain from trading on inside information. A The SEC's position, as stated in its opinion in this case, is that a tippee "inherits" the Cady, Roberts obligation to shareholders whenever he receives inside information from an insider: "In tipping potential traders, Dirks breached a duty which he had assumed as a result of knowingly receiving *656 confidential information from [Equity Funding] insiders. Tippees such as Dirks who receive non-public, material information from insiders become `subject to the same duty as [the] insiders.' Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc. [495 F.2d 228, 237 (CA2 1974) (quoting Ross v. Licht, 263 F. Supp. 395, 410 (SDNY 1967))]. Such a tippee breaches the fiduciary duty which he assumes from the insider when the tippee knowingly transmits the information to someone who will probably trade on the basis thereof. . . . Presumably, Dirks' informants were entitled to disclose the [Equity Funding] fraud in order to bring it to light and its perpetrators to justice. However, Dirks — standing in their shoes — committed a breach of the fiduciary duty which he had assumed in dealing with them, when he passed the information on to traders." 21 S.E. C. Docket, at 1410, n. 42. This view differs little from the view that we rejected as inconsistent with congressional intent in Chiarella. In that case, the Court of Appeals agreed with the SEC and affirmed Chiarella's conviction, holding that "[a]nyone — corporate insider or not — who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose." United States v. Chiarella, 588 F.2d 1358, 1365 (CA2 1978) (emphasis in original). Here, the SEC maintains that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading.[15] *657 In effect, the SEC's theory of tippee liability in both cases appears rooted in the idea that the antifraud provisions require equal information among all traders. This conflicts with the principle set forth in Chiarella that only some persons, under some circumstances, will be barred from trading while in possession of material nonpublic information.[16] Judge Wright correctly read our opinion in Chiarella as repudiating any notion that all traders must enjoy equal information before trading: "[T]he `information' theory is rejected. Because the disclose-or-refrain duty is extraordinary, it attaches only when a party has legal obligations other than a mere duty to comply with the general antifraud proscriptions in the federal securities laws." 220 U. S. App. D. C., at 322, 681 F.2d, at 837. See Chiarella, 445 U. S., at 235, n. 20. We reaffirm today that "[a] duty [to disclose] *658 arises from the relationship between parties . . . and not merely from one's ability to acquire information because of his position in the market." Id., at 231-232, n. 14. Imposing a duty to disclose or abstain solely because a person knowingly receives material nonpublic information from an insider and trades on it could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market.[17] It is commonplace for analysts to "ferret out and analyze information," 21 S.E. C. Docket, at 1406,[18] and this often is done by meeting with and questioning corporate officers and others who are insiders. And information that the analysts *659 obtain normally may be the basis for judgments as to the market worth of a corporation's securities. The analyst's judgment in this respect is made available in market letters or otherwise to clients of the firm. It is the nature of this type of information, and indeed of the markets themselves, that such information cannot be made simultaneously available to all of the corporation's stockholders or the public generally. B The conclusion that recipients of inside information do not invariably acquire a duty to disclose or abstain does not mean that such tippees always are free to trade on the information. The need for a ban on some tippee trading is clear. Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain. See 15 U.S. C. § 78t(b) (making it unlawful to do indirectly "by means of any other person" any act made unlawful by the federal securities laws). Similarly, the transactions of those who knowingly participate with the fiduciary in such a breach are "as forbidden" as transactions "on behalf of the trustee himself." Mosser v. Darrow, 341 U.S. 267, 272 (1951). See Jackson v. Smith, 254 U.S. 586, 589 (1921); Jackson v. Ludeling, 21 Wall. 616, 631-632 (1874). As the Court explained in Mosser, a contrary rule "would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own." 341 U.S., at 271. See SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (CA2), cert. denied, 404 U.S. 1005 (1971). Thus, the tippee's duty to disclose or abstain is derivative from that of the insider's duty. See Tr. of Oral Arg. 38. Cf. Chiarella, 445 U. S., at 246, n. 1 (BLACKMUN, J., dissenting). As we noted in Chiarella, "[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty." Id., at 230, n. 12. *660 Thus, some tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly.[19] And for Rule 10b-5 purposes, the insider's disclosure is improper only where it would violate his Cady, Roberts duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach.[20] As Commissioner Smith perceptively observed *661 in In re Investors Management Co., 44 S.E. C. 633 (1971): "[T]ippee responsibility must be related back to insider responsibility by a necessary finding that the tippee knew the information was given to him in breach of a duty by a person having a special relationship to the issuer not to disclose the information . . . ." Id., at 651 (concurring in result). Tipping thus properly is viewed only as a means of indirectly violating the Cady, Roberts disclose-or-abstain rule.[21] C In determining whether a tippee is under an obligation to disclose or abstain, it thus is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. All disclosures of confidential corporate information *662 are not inconsistent with the duty insiders owe to shareholders. In contrast to the extraordinary facts of this case, the more typical situation in which there will be a question whether disclosure violates the insider's Cady, Roberts duty is when insiders disclose information to analysts. See n. 16, supra. In some situations, the insider will act consistently with his fiduciary duty to shareholders, and yet release of the information may affect the market. For example, it may not be clear — either to the corporate insider or to the recipient analyst — whether the information will be viewed as material nonpublic information. Corporate officials may mistakenly think the information already has been disclosed or that it is not material enough to affect the market. Whether disclosure is a breach of duty therefore depends in large part on the purpose of the disclosure. This standard was identified by the SEC itself in Cady, Roberts: a purpose of the securities laws was to eliminate "use of inside information for personal advantage." 40 S.E. C., at 912, n. 15. See n. 10, supra. Thus, the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach.[22] As Commissioner Smith stated in Investors Management Co.: "It is important in this type of *663 case to focus on policing insiders and what they do . . . rather than on policing information per se and its possession. . . ." 44 S.E. C., at 648 (concurring in result). The SEC argues that, if inside-trading liability does not exist when the information is transmitted for a proper purpose but is used for trading, it would be a rare situation when the parties could not fabricate some ostensibly legitimate business justification for transmitting the information. We think the SEC is unduly concerned. In determining whether the insider's purpose in making a particular disclosure is fraudulent, the SEC and the courts are not required to read the parties' minds. Scienter in some cases is relevant in determining whether the tipper has violated his Cady, Roberts duty.[23] But to determine whether the disclosure itself "deceive[s], manipulate[s], or defraud[s]" shareholders, Aaron v. SEC, 446 U.S. 680, 686 (1980), the initial inquiry is whether there has been a breach of duty by the insider. This requires courts to focus on objective criteria, i. e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings. Cf. 40 S.E. C., at 912, n. 15; Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities *664 Laws, 93 Harv. L. Rev. 322, 348 (1979) ("The theory . . . is that the insider, by giving the information out selectively, is in effect selling the information to its recipient for cash, reciprocal information, or other things of value for himself. . ."). There are objective facts and circumstances that often justify such an inference. For example, there may be a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient. The elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend. The tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient. Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts. But it is essential, we think, to have a guiding principle for those whose daily activities must be limited and instructed by the SEC's inside-trading rules, and we believe that there must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. In contrast, the rule adopted by the SEC in this case would have no limiting principle.[24] *665 IV Under the inside-trading and tipping rules set forth above, we find that there was no actionable violation by Dirks.[25] It is undisputed that Dirks himself was a stranger to Equity Funding, with no pre-existing fiduciary duty to its shareholders.[26] He took no action, directly or indirectly, that induced the shareholders or officers of Equity Funding to repose trust or confidence in him. There was no expectation by Dirks' sources that he would keep their information in confidence. Nor did Dirks misappropriate or illegally obtain the information about Equity Funding. Unless the insiders breached their Cady, Roberts duty to shareholders in disclosing the nonpublic information to Dirks, he breached no duty when he passed it on to investors as well as to the Wall Street Journal. *666 It is clear that neither Secrist nor the other Equity Funding employees violated their Cady, Roberts duty to the corporation's shareholders by providing information to Dirks.[27]*667 The tippers received no monetary or personal benefit for revealing Equity Funding's secrets, nor was their purpose to make a gift of valuable information to Dirks. As the facts of this case clearly indicate, the tippers were motivated by a desire to expose the fraud. See supra, at 648-649. In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by Dirks. See n. 20, supra. Dirks therefore could not have been "a participant after the fact in [an] insider's breach of a fiduciary duty." Chiarella, 445 U. S., at 230, n. 12. V We conclude that Dirks, in the circumstances of this case, had no duty to abstain from use of the inside information that he obtained. The judgment of the Court of Appeals therefore is Reversed.

Petitioner Raymond Dirks received material nonpublic information from "insiders" of a corporation with which he had no connection. He disclosed this information to investors who relied on it in trading in the shares of the corporation. The question is whether Dirks violated the antifraud provisions of the federal securities laws by this disclosure. I In 1973, Dirks was an officer of a New York broker-dealer firm who specialized in providing investment analysis of insurance company securities to institutional investors.[1] On *649 March 6, Dirks received information from Ronald Secrist, a former officer of Equity Funding of America. Secrist alleged that the assets of Equity Funding, a diversified corporation primarily engaged in selling life insurance and mutual funds, were vastly overstated as the result of fraudulent corporate practices. Secrist also stated that various regulatory agencies had failed to act on similar charges made by Equity Funding employees. He urged Dirks to verify the fraud and disclose it publicly. Dirks decided to investigate the allegations. He visited Equity Funding's headquarters in Los Angeles and interviewed several officers and employees of the corporation. The senior management denied any wrongdoing, but certain corporation employees corroborated the charges of fraud. Neither Dirks nor his firm owned or traded any Equity Funding stock, but throughout his investigation he openly discussed the information he had obtained with a number of clients and investors. Some of these persons sold their holdings of Equity Funding securities, including five investment advisers who liquidated holdings of more than $ million.[2] While Dirks was in Los Angeles, he was in touch regularly with William Blundell, the Wall Street Journal's Los Angeles bureau chief. Dirks urged Blundell to write a story on the fraud allegations. Blundell did not believe, however, that such a massive fraud could go undetected and declined to *650 write the story. He feared that publishing such damaging hearsay might be libelous. During the 2-week period in which Dirks pursued his investigation and spread word of Secrist's charges, the price of Equity Funding stock fell from $26 per share to less than $15 per share. This led the New York Stock Exchange to halt trading on March 27. Shortly thereafter California insurance authorities impounded Equity Funding's records and uncovered evidence of the fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against Equity Funding[3] and only then, on April 2, did the Wall Street Journal publish a front-page story based largely on information assembled by Dirks. Equity Funding immediately went into receivership.[4] The SEC began an investigation into Dirks' role in the exposure of the fraud. After a hearing by an Administrative Law Judge, the SEC found that Dirks had aided and abetted violations of 17(a) of the Securities Act of 1933, as amended, 15 U.S. C. 77q(a),[5] (b) of the Securities *651 Exchange Act of 1934, 15 U.S. C. 78j(b),[6] and SEC Rule b-5, 17 CFR 240.b-5 (1983),[7] by repeating the allegations of fraud to members of the investment community who later sold their Equity Funding stock. The SEC concluded: "Where `tippees' — regardless of their motivation or occupation — come into possession of material `corporate information that they know is confidential and know or should know came from a corporate insider,' they must either publicly disclose that information or refrain from trading." 21 S.E. C. Docket 1401, 1407 (1981) (footnote omitted) ). Recognizing, however, that Dirks "played an important role in bringing [Equity Funding's] massive fraud *652 to light," 21 S.E. C. Docket, at 1412,[8] the SEC only censured him.[9] Dirks sought review in the Court of Appeals for the District of Columbia Circuit. The court entered judgment against Dirks "for the reasons stated by the Commission in its opinion." App. to Pet. for Cert. C-2. Judge Wright, a member of the panel, subsequently issued an opinion. Judge Robb concurred in the result and Judge Tamm dissented; neither filed a separate opinion. Judge Wright believed that "the obligations of corporate fiduciaries pass to all those to whom they disclose their information before it has been disseminated to the public at large." 2 U. S. App. D. C. 309, 324, Alternatively, Judge Wright concluded that, as an employee of a broker-dealer, Dirks had violated "obligations to the SEC and to the public completely independent of any obligations he acquired" as a result of receiving the information. In view of the importance to the SEC and to the securities industry of the question presented by this case, we granted a writ of certiorari. We now reverse. *653 II In the seminal case of In re Cady, & Co., 40 S.E. C. 907 (1961), the SEC recognized that the common law in some jurisdictions imposes on "corporate `insiders,' particularly officers, directors, or controlling stockholders" an "affirmative duty of disclosure when dealing in securities." and n. 13.[] The SEC found that not only did breach of this common-law duty also establish the elements of a Rule b-5 violation,[11] but that individuals other than corporate insiders could be obligated either to disclose material nonpublic information[12] before trading or to abstain from trading altogether. In we accepted the two elements set out in Cady, for establishing a Rule b-5 violation: "(i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information *654 by trading without disclosure." In examining whether had an obligation to disclose or abstain, the Court found that there is no general duty to disclose before trading on material nonpublic information,[13] and held that "a duty to disclose under (b) does not arise from the mere possession of nonpublic market information." Such a duty arises rather from the existence of a fiduciary relationship. See Not "all breaches of fiduciary duty in connection with a securities transaction," however, come within the ambit of Rule b-5. Santa Fe Industries, There must also be "manipulation or deception." In an inside-trading case this fraud derives from the "inherent unfairness involved where one takes advantage" of "information intended to be available only for a corporate purpose and not for the personal benefit of anyone." In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E. C. 933, 936 (1968). Thus, an insider will be liable under Rule b-5 for inside trading only where he fails to disclose material nonpublic information before trading on it and thus makes "secret profits." Cady, III We were explicit in in saying that there can be no duty to disclose where the person who has traded on inside information "was not [the corporation's] agent, was not a fiduciary, [or] was not a person in whom the sellers [of the securities] had placed their trust and confidence." Not to require such a fiduciary relationship, we recognized, would "depar[t] radically from the established doctrine that duty arises from a specific relationship between *655 two parties" and would amount to "recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information." This requirement of a specific relationship between the shareholders and the individual trading on inside information has created analytical difficulties for the SEC and courts in policing tippees who trade on inside information. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships.[14] In view of this absence, it has been unclear how a tippee acquires the Cady, duty to refrain from trading on inside information. A The SEC's position, as stated in its opinion in this case, is that a tippee "inherits" the Cady, obligation to shareholders whenever he receives inside information from an insider: "In tipping potential traders, Dirks breached a duty which he had assumed as a result of knowingly receiving *656 confidential information from [Equity Funding] insiders. Tippees such as Dirks who receive non-public, material information from insiders become `subject to the same duty as [the] insiders.' ]. Such a tippee breaches the fiduciary duty which he assumes from the insider when the tippee knowingly transmits the information to someone who will probably trade on the basis thereof. Presumably, Dirks' informants were entitled to disclose the [Equity Funding] fraud in order to bring it to light and its perpetrators to justice. However, Dirks — standing in their shoes — committed a breach of the fiduciary duty which he had assumed in dealing with them, when he passed the information on to traders." 21 S.E. C. Docket, at 1, n. 42. This view differs little from the view that we rejected as inconsistent with congressional intent in In that case, the Court of Appeals agreed with the SEC and affirmed 's conviction, holding that "[a]nyone — corporate insider or not — who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose." United Here, the SEC maintains that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading.[15] *657 In effect, the SEC's theory of tippee liability in both cases appears rooted in the idea that the antifraud provisions require equal information among all traders. This conflicts with the principle set forth in that only some persons, under some circumstances, will be barred from trading while in possession of material nonpublic information.[] Judge Wright correctly read our opinion in as repudiating any notion that all traders must enjoy equal information before trading: "[T]he `information' theory is rejected. Because the disclose-or-refrain duty is extraordinary, it attaches only when a party has legal obligations other than a mere duty to comply with the general antifraud proscriptions in the federal securities laws." 2 U. S. App. D. C., at 322, See 445 U. S., n. We reaffirm today that "[a] duty [to disclose] *658 arises from the relationship between parties and not merely from one's ability to acquire information because of his position in the market." Imposing a duty to disclose or abstain solely because a person knowingly receives material nonpublic information from an insider and trades on it could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market.[17] It is commonplace for analysts to "ferret out and analyze information," 21 S.E. C. Docket, at 1406,[18] and this often is done by meeting with and questioning corporate officers and others who are insiders. And information that the analysts *659 obtain normally may be the basis for judgments as to the market worth of a corporation's securities. The analyst's judgment in this respect is made available in market letters or otherwise to clients of the firm. It is the nature of this type of information, and indeed of the markets themselves, that such information cannot be made simultaneously available to all of the corporation's stockholders or the public generally. B The conclusion that recipients of inside information do not invariably acquire a duty to disclose or abstain does not mean that such tippees always are free to trade on the information. The need for a ban on some tippee trading is clear. Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain. See 15 U.S. C. 78t(b) (making it unlawful to do indirectly "by means of any other person" any act made unlawful by the federal securities laws). Similarly, the transactions of those who knowingly participate with the fiduciary in such a breach are "as forbidden" as transactions "on behalf of the trustee himself." See ; As the Court explained in Mosser, a contrary rule "would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own." See (CA2), cert. denied, Thus, the tippee's duty to disclose or abstain is derivative from that of the insider's duty. See Tr. of Oral Arg. 38. Cf. n. 1 As we noted in "[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty." at *660 Thus, some tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly.[19] And for Rule b-5 purposes, the insider's disclosure is improper only where it would violate his Cady, duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach.[] As Commissioner Smith perceptively observed *661 in In re Investors Management Co., 44 S.E. C. 633 : "[T]ippee responsibility must be related back to insider responsibility by a necessary finding that the tippee knew the information was given to him in breach of a duty by a person having a special relationship to the issuer not to disclose the information" Tipping thus properly is viewed only as a means of indirectly violating the Cady, disclose-or-abstain rule.[21] C In determining whether a tippee is under an obligation to disclose or abstain, it thus is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. All disclosures of confidential corporate information *662 are not inconsistent with the duty insiders owe to shareholders. In contrast to the extraordinary facts of this case, the more typical situation in which there will be a question whether disclosure violates the insider's Cady, duty is when insiders disclose information to analysts. See n. In some situations, the insider will act consistently with his fiduciary duty to shareholders, and yet release of the information may affect the market. For example, it may not be clear — either to the corporate insider or to the recipient analyst — whether the information will be viewed as material nonpublic information. Corporate officials may mistakenly think the information already has been disclosed or that it is not material enough to affect the market. Whether disclosure is a breach of duty therefore depends in large part on the purpose of the disclosure. This standard was identified by the SEC itself in Cady, : a purpose of the securities laws was to eliminate "use of inside information for personal advantage." 40 S.E. C., n. 15. See n. Thus, the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach.[22] As Commissioner Smith stated in Investors Management Co.: "It is important in this type of *663 case to focus on policing insiders and what they do rather than on policing information per se and its possession." 44 S.E. C., at 648 The SEC argues that, if inside-trading liability does not exist when the information is transmitted for a proper purpose but is used for trading, it would be a rare situation when the parties could not fabricate some ostensibly legitimate business justification for transmitting the information. We think the SEC is unduly concerned. In determining whether the insider's purpose in making a particular disclosure is fraudulent, the SEC and the courts are not required to read the parties' minds. Scienter in some cases is relevant in determining whether the tipper has violated his Cady, duty.[23] But to determine whether the disclosure itself "deceive[s], manipulate[s], or defraud[s]" shareholders, the initial inquiry is whether there has been a breach of duty by the insider. This requires courts to focus on objective criteria, i. e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings. Cf. 40 S.E. C., n. 15; Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities *664 Laws, There are objective facts and circumstances that often justify such an inference. For example, there may be a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient. The elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend. The tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient. Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts. But it is essential, we think, to have a guiding principle for those whose daily activities must be limited and instructed by the SEC's inside-trading rules, and we believe that there must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. In contrast, the rule adopted by the SEC in this case would have no limiting principle.[24] *665 IV Under the inside-trading and tipping rules set forth above, we find that there was no actionable violation by Dirks.[25] It is undisputed that Dirks himself was a stranger to Equity Funding, with no pre-existing fiduciary duty to its shareholders.[26] He took no action, directly or indirectly, that induced the shareholders or officers of Equity Funding to repose trust or confidence in him. There was no expectation by Dirks' sources that he would keep their information in confidence. Nor did Dirks misappropriate or illegally obtain the information about Equity Funding. Unless the insiders breached their Cady, duty to shareholders in disclosing the nonpublic information to Dirks, he breached no duty when he passed it on to investors as well as to the Wall Street Journal. *666 It is clear that neither Secrist nor the other Equity Funding employees violated their Cady, duty to the corporation's shareholders by providing information to Dirks.[27]*667 The tippers received no monetary or personal benefit for revealing Equity Funding's secrets, nor was their purpose to make a gift of valuable information to Dirks. As the facts of this case clearly indicate, the tippers were motivated by a desire to expose the fraud. See In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by Dirks. See n. Dirks therefore could not have been "a participant after the fact in [an] insider's breach of a fiduciary duty." 445 U. S., at V We conclude that Dirks, in the circumstances of this case, had no duty to abstain from use of the inside information that he obtained. The judgment of the Court of Appeals therefore is Reversed.

Justice Stevens

concurring

United States v. Foster Lumber Co.

https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/

https://www.courtlistener.com/api/rest/v3/clusters/109555/

1976-010

MR. JUSTICE BLACKMUN advances persuasive policy arguments against the Court's reading of § 172. But the same *49 arguments apply equally to the Code's treatment of an operating loss which occurs in the same year as an offsetting capital gain. In paragraph 7 of his opinion MR. JUSTICE BLACKMUN seems to accept the necessity of a "wooden and unimaginative reading" of the statute in the "same year" situation though he rejects such a reading in a case involving different years. Since the statutory language seems rather plain in both situations, I think we have the same duty in both to resist the temptation to attempt any creative rewriting of the Internal Revenue Code. The relevant Code provisions were perfectly clear in 1939 and there is simply no basis for concluding that the 1954 Code was intended to achieve the result favored by MR. JUSTICE BLACKMUN, no matter how sensible such a result would be. Accordingly, as much as I would like to reach the result advocated by the dissent, I find the arguments in the Court's opinion, which I join, unanswerable. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR.

MR. JUSTICE BLACKMUN advances persuasive policy arguments against the Court's reading of 172. But the same *49 arguments apply equally to the Code's treatment of an operating loss which occurs in the same year as an offsetting capital gain. In paragraph 7 of his opinion MR. JUSTICE BLACKMUN seems to accept the necessity of a "wooden and unimaginative reading" of the statute in the "same year" situation though he rejects such a reading in a case involving different years. Since the statutory language seems rather plain in both situations, I think we have the same duty in both to resist the temptation to attempt any creative rewriting of the Internal Revenue Code. The relevant Code provisions were perfectly clear in 1939 and there is simply no basis for concluding that the 1954 Code was intended to achieve the result favored by MR. JUSTICE BLACKMUN, no matter how sensible such a result would be. Accordingly, as much as I would like to reach the result advocated by the dissent, I find the arguments in the Court's opinion, which I join, unanswerable. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR.

Justice Stewart

dissenting

Watt v. Alaska

https://www.courtlistener.com/opinion/110466/watt-v-alaska/

https://www.courtlistener.com/api/rest/v3/clusters/110466/

1980-077

Today the Court strains to conclude that Congress did not mean what it said, and judicially repeals a reasonable[1]*277 and specific legislative provision because the provision announced a change in the law the Court divines to have been unintended. A The Wildlife Refuge Revenue Sharing Act, as amended in 1964, expressly provides that "all revenues received by the Secretary of the Interior from the sale or other disposition of . . . minerals . . ." within federal wildlife refuges administered by the Fish and Wildlife Service shall be "reserved in a separate fund for disposition as hereafter prescribed." 16 U.S. C. § 715s (a) (1976 ed., Supp. III). At the end of each fiscal year, a portion of these revenues is to be distributed to the counties in which the refuges are located. In the case of "any reserve area," expressly defined as "land withdrawn from the public domain" for wildlife refuge purposes, § 715s (g) (3), the allocation to the county is 25% of net receipts. § 715s (c) (2). Alternative formulas are specified for refuges created out of "fee areas." § 715s (c) (1). Net receipts remaining after the payments to counties "shall be transferred to the Migratory Bird Conservation Fund for use in the acquisition of suitable areas for migratory bird refuges." § 715s (e). The statute draws no distinction between mineral revenues and receipts from other natural resources or between revenues from "acquired" lands and those from "reserved" lands. The statutory scheme is therefore clear: receipts from mineral leases, like all other revenues generated from wildlife refuges, whether the refuge is comprised of reserved or acquired lands, are to be apportioned between the *278 counties and the federal Migratory Bird Conservation Fund. No receipts are to go to the State itself. The Court argues that the addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act must be read to apply only to acquired refuge lands and not to reserved refuge lands. But there is no support, in law or legislative history, for exempting mineral revenues from refuges consisting of reserved public lands from the distribution formula of the Wildlife Refuge Revenue Sharing Act. The District Court concluded that "there is nothing in 16 U.S. C. § 715s which would support a restrictive construction of the word `minerals,'" and that "a literal approach of statutory construction would dictate an expansive definition including both reserved and acquired lands." 436 F. Supp. 288, 291. Similarly, the Court of Appeals found that "under the plain meaning of minerals and of the other provisions of § 715s, its language fairly brings the Kenai Moose Range oil and gas revenues within it scope." 612 F.2d 1210, 1213. It was a mistake for either court to proceed further. The addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act in 1964 would be meaningless if it reached only leases of acquired lands. And, "[i]n construing a statute we are obliged to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U.S. 330, 339. Section 6 of the Mineral Leasing Act for Acquired Lands, 30 U.S. C. § 355, already provided that mineral leases of acquired lands "shall be distributed in the same manner as prescribed for other receipts from the lands affected by the lease." Accordingly, any allocation scheme established for wildlife refuges encompassing acquired lands would automatically apply to mineral revenues, as well as those from the resources specified in the Refuge Act. As there was no ambiguity on that point, there was no useful purpose for Congress to declare once again how mineral revenues from acquired lands within wildlife refuges would be allocated.[2]*279 The suggestion, therefore, that the 1964 amendment reached only acquired lands presumes that the design of Congress in adding the word minerals was to accomplish precisely nothing. B The Court concludes that the statute does not mean what it says because the Wildlife Refuge Revenue Sharing Act of 1964 is in conflict with the Mineral Leasing Act of 1920,[3]*280 and because "repeals by implication are not favored." Ante, at 267. But that canon of construction has no force in this context. The challenged section in the 1964 Act, far from "repealing" the 1920 Act, merely established a limited and specific exception to one of the provisions in the earlier law. When the text of a new statute, dealing with a discrete subject, is unambiguous, it should be given effect even if it alters a previous law that dealt with the same general subject. The maxim that "repeals by implication are disfavored" has force when the argument is made that a general statute, wholly occupying a field, eviscerates an earlier and more specific enactment of limited coverage but without an indication of congressional intent to do so. In such a case, it may be reasonable to presume that Congress had not anticipated *281 that its broad pronouncement would have serious implications in a peripheral, or even quite different, area, and that had it recognized that a specific earlier law would be rendered meaningless by a new enactment, it would have expressly indicated its intent to repeal or amend. Thus, in Morton v. Mancari, 417 U.S. 535, the Court refused to find a repeal where the words of the Equal Employment Opportunity Act of 1972, if taken literally, would have worked a repeal of an Indian preference policy consistently recognized by Congress for almost 40 years. The Court's description of Mancari as "a prototypical case where an adjudication of repeal by implication is not appropriate," id., at 550, is instructive: "The preference is a longstanding, important component of the Government's Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem." Ibid.; see also Fussell v. Gregg, 113 U.S. 550. The contrast with these cases is obvious. The provision in the more recent enactment deals specifically with the same subject— distribution of revenue from leases on federal lands— that had been the object of an earlier, and more general,[4] statute.[5] In any case, there is more than enough evidence *282 to indicate that Congress was aware of what it was doing when the word "minerals" was added to the Wildlife Refuge Revenue Sharing Act. The legislative history of the 1964 amendments to 16 U.S. C. § 715s (1976 ed., Supp. III) discloses that Congress had before it numerous bills from which to choose to compensate counties in which wildlife refuges were located, some of which omitted any reference to "minerals," S. 2138, 87th Cong., 1st Sess. (1961); S. 2678, 2770, 2927, 3201, 87th Cong., 2d Sess. (1962); H. R. 12144, 12143, 11535, 11525, 10714, 87th Cong., 2d Sess. (1962); S. 1720, 88th Cong., 1st Sess. (1963); and some that included such reference, H. R. 2393, 1004, 1127, 9030, 5996, 88th Cong., 1st Sess. (1963); H. R. 11008, 88th Cong., 2d Sess. (1964); S. 179, 1363, 88th Cong., 1st Sess. (1963); S. 2498, 88th Cong., 2d Sess. (1964). Presumably when Congress adopted a bill containing the term, it was aware of the difference. Moreover, the 1964 amendment was not a "technical" amendment, nor was it a last-minute addition from the floor. See United States v. Batchelder, 442 U.S. 114, 120. The suggestion that the word "minerals" be added to 16 U.S. C. § 715s (1976 ed., Supp. III) was raised in June 1962 when the Interior Department submitted a substitute bill for those pending in the House and Senate. Report of the Department of the Interior dated June 20, 1962, in S. Rep. No. 1919, 87th Cong., 2d Sess., 13, 15 (1962); Report of the Department of the Interior of June 22, 1962, in Authorize Increased Payments to Counties for Wildlife Refuges: Hearings on H. R. 10714, H. R. 11525, H. R. 11535, H. R. 12143, and H. R. 12144 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 7, 9 (1962). *283 The amendment was not highlighted, but it is unlikely that it escaped notice.[6] Later the same year, the relevant Committees of both the House and the Senate adopted the language, S. Rep. No. 1919, supra, at 19; H. R. Rep. No. 2499, 87th Cong., 2d Sess., 9 (1962), and the text was before Congress for the following two years. It is therefore very difficult to conclude that the addition was inadvertent or unnoticed.[7] But, in any case, nothing in the legislative history demonstrates congressional intent different from that reflected in the words of the statute. "`The most that can be said for the legislative history is that it is on the whole inconclusive. Certainly, it contains nothing that requires the court to reject the construction which the statutory *284 language clearly requires.'" Ullman v. United States, 350 U.S. 422, 433. The Court today is bothered because the literal meaning of a statute altered prevailing law.[8] But usually the very point of new legislation is to alter prevailing law. "Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment." T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 104 (2d ed. 1874). Congress does not have the affirmative obligation to explain to this Court why it deems a particular enactment wise or necessary, or to demonstrate that it is aware of the consequences of its action.[9] See Harrison v. PPG Industries, Inc., 446 U.S. 578, 592. And "[i]t *285 is not a function of this Court to presume that `Congress was unaware of what it accomplished.'" Albernaz v. United States, 450 U.S. 333, 342 (quoting U. S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 179). Rather than join the Court in its speculative efforts to deal with the doctrine of implied repeal, I would rest decision of these cases upon an established rule of statutory construction: leges posteriores, priores contrarias abrogant. Sedgwick describes this rule with approval as follows: "`If two inconsistent acts be passed at different times, the last,' said the Master of the Rolls, `is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way.'" Sedgwick, supra, at 104. See District of Columbia v. Hutton, 143 U.S. 18, 26-27; Henderson's Tobacco, 11 Wall. 652, 657; United States v. Tynen, 11 Wall. 88, 92. Observance of this rule also allows the Court to respect the most basic of all canons of statutory construction: that statutes mean what they plainly say.[10] As Chief Justice Marshall said more than a century and a half ago: "[T]he intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words there is no room for construction. The case must *286 be a strong one indeed, which would justify a court in departing from the plain meaning of words . . . in search of an intention which the words themselves did not suggest." United States v. Wiltberger, 5 Wheat. 76, 95-96. I respectfully dissent.

Today the Court strains to conclude that Congress did not mean what it said, and judicially repeals a reasonable[1]*277 and specific legislative provision because the provision announced a change in the law the Court divines to have been unintended. A The Wildlife Refuge Revenue Sharing Act, as amended in 1964, expressly provides that "all revenues received by the Secretary of the Interior from the sale or other disposition of minerals" within federal wildlife refuges administered by the Fish and Wildlife Service shall be "reserved in a separate fund for disposition as hereafter prescribed." 16 U.S. C. 715s (a) (1976 ed., Supp. III). At the end of each fiscal year, a portion of these revenues is to be distributed to the counties in which the refuges are located. In the case of "any reserve area," expressly defined as "land withdrawn from the public domain" for wildlife refuge purposes, 715s (g) (3), the allocation to the county is 25% of net receipts. 715s (c) (2). Alternative formulas are specified for refuges created out of "fee areas." 715s (c) (1). Net receipts remaining after the payments to counties "shall be transferred to the Migratory Bird Conservation Fund for use in the acquisition of suitable areas for migratory bird refuges." 715s (e). The statute draws no distinction between mineral revenues and receipts from other natural resources or between revenues from "acquired" lands and those from "reserved" lands. The statutory scheme is therefore clear: receipts from mineral leases, like all other revenues generated from wildlife refuges, whether the refuge is comprised of reserved or acquired lands, are to be apportioned between the *278 counties and the federal Migratory Bird Conservation Fund. No receipts are to go to the State itself. The Court argues that the addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act must be read to apply only to acquired refuge lands and not to reserved refuge lands. But there is no support, in law or legislative history, for exempting mineral revenues from refuges consisting of reserved public lands from the distribution formula of the Wildlife Refuge Revenue Sharing Act. The District Court concluded that "there is nothing in 16 U.S. C. 715s which would support a restrictive construction of the word `minerals,'" and that "a literal approach of statutory construction would dictate an expansive definition including both reserved and acquired lands." Similarly, the Court of Appeals found that "under the plain meaning of minerals and of the other provisions of 715s, its language fairly brings the Kenai Moose Range oil and gas revenues within it scope." It was a mistake for either court to proceed further. The addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act in 1964 would be meaningless if it reached only leases of acquired lands. And, "[i]n construing a statute we are obliged to give effect, if possible, to every word Congress used." Section 6 of the Mineral Leasing Act for Acquired Lands, 30 U.S. C. 355, already provided that mineral leases of acquired lands "shall be distributed in the same manner as prescribed for other receipts from the lands affected by the lease." Accordingly, any allocation scheme established for wildlife refuges encompassing acquired lands would automatically apply to mineral revenues, as well as those from the resources specified in the Refuge Act. As there was no ambiguity on that point, there was no useful purpose for Congress to declare once again how mineral revenues from acquired lands within wildlife refuges would be allocated.[2]*279 The suggestion, therefore, that the 1964 amendment reached only acquired lands presumes that the design of Congress in adding the word minerals was to accomplish precisely nothing. B The Court concludes that the statute does not mean what it says because the Wildlife Refuge Revenue Sharing Act of 1964 is in conflict with the Mineral Leasing Act of 10,[3]*280 and because "repeals by implication are not favored." Ante, at 267. But that canon of construction has no force in this context. The challenged section in the 1964 Act, far from "repealing" the 10 Act, merely established a limited and specific exception to one of the provisions in the earlier law. When the text of a new statute, dealing with a discrete subject, is unambiguous, it should be given effect even if it alters a previous law that dealt with the same general subject. The maxim that "repeals by implication are disfavored" has force when the argument is made that a general statute, wholly occupying a field, eviscerates an earlier and more specific enactment of limited coverage but without an indication of congressional intent to do so. In such a case, it may be reasonable to presume that Congress had not anticipated *281 that its broad pronouncement would have serious implications in a peripheral, or even quite different, area, and that had it recognized that a specific earlier law would be rendered meaningless by a new enactment, it would have expressly indicated its intent to repeal or amend. Thus, in the Court refused to find a repeal where the words of the Equal Employment Opportunity Act of 1972, if taken literally, would have worked a repeal of an Indian preference policy consistently recognized by Congress for almost 40 years. The Court's description of Mancari as "a prototypical case where an adjudication of repeal by implication is not appropriate," is instructive: "The preference is a longstanding, important component of the Government's Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem." Ibid.; see also The contrast with these cases is obvious. The provision in the more recent enactment deals specifically with the same subject— distribution of revenue from leases on federal lands— that had been the object of an earlier, and more general,[4] statute.[5] In any case, there is more than enough evidence *282 to indicate that Congress was aware of what it was doing when the word "minerals" was added to the Wildlife Refuge Revenue Sharing Act. The legislative history of the 1964 amendments to 16 U.S. C. 715s (1976 ed., Supp. III) discloses that Congress had before it numerous bills from which to choose to compensate counties in which wildlife refuges were located, some of which omitted any reference to "minerals," S. 2138, 87th Cong., 1st Sess. (1961); S. 2678, 2770, 27, 3201, 87th Cong., 2d Sess. (1962); H. R. 12144, 12143, 11535, 11525, 10714, 87th Cong., 2d Sess. (1962); S. 1720, 88th Cong., 1st Sess. (1963); and some that included such reference, H. R. 2393, 1004, 1127, 9030, 5996, 88th Cong., 1st Sess. (1963); H. R. 11008, 88th Cong., 2d Sess. (1964); S. 1363, 88th Cong., 1st Sess. (1963); S. 2498, 88th Cong., 2d Sess. (1964). Presumably when Congress adopted a bill containing the term, it was aware of the difference. Moreover, the 1964 amendment was not a "technical" amendment, nor was it a last-minute addition from the floor. See United The suggestion that the word "minerals" be added to 16 U.S. C. 715s (1976 ed., Supp. III) was raised in June 1962 when the Interior Department submitted a substitute bill for those pending in the House and Senate. Report of the Department of the Interior dated June 20, 1962, in S. Rep. No. 1919, 87th Cong., 2d Sess., 13, 15 (1962); Report of the Department of the Interior of June 22, 1962, in Authorize Increased Payments to Counties for Wildlife Refuges: Hearings on H. R. 10714, H. R. 11525, H. R. 11535, H. R. 12143, and H. R. 12144 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 7, 9 (1962). *283 The amendment was not highlighted, but it is unlikely that it escaped notice.[6] Later the same year, the relevant Committees of both the House and the Senate adopted the language, S. Rep. No. 1919, ; H. R. Rep. No. 2499, 87th Cong., 2d Sess., 9 (1962), and the text was before Congress for the following two years. It is therefore very difficult to conclude that the addition was inadvertent or unnoticed.[7] But, in any case, nothing in the legislative history demonstrates congressional intent different from that reflected in the words of the statute. "`The most that can be said for the legislative history is that it is on the whole inconclusive. Certainly, it contains nothing that requires the court to reject the construction which the statutory *284 language clearly requires.'" The Court today is bothered because the literal meaning of a statute altered prevailing law.[8] But usually the very point of new legislation is to alter prevailing law. "Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment." T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 104 (2d ed. 1874). Congress does not have the affirmative obligation to explain to this Court why it deems a particular enactment wise or necessary, or to demonstrate that it is aware of the consequences of its action.[9] See And "[i]t *285 is not a function of this Court to presume that `Congress was unaware of what it accomplished.'" (quoting U. S. Railroad Retirement ). Rather than join the Court in its speculative efforts to deal with the doctrine of implied repeal, I would rest decision of these cases upon an established rule of statutory construction: leges posteriores, priores contrarias abrogant. Sedgwick describes this rule with approval as follows: "`If two inconsistent acts be passed at different times, the last,' said the Master of the Rolls, `is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way.'" Sedgwick, See District of ; Henderson's Tobacco, ; United Observance of this rule also allows the Court to respect the most basic of all canons of statutory construction: that statutes mean what they plainly say.[10] As Chief Justice Marshall said more than a century and a half ago: "[T]he intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words there is no room for construction. The case must *286 be a strong one indeed, which would justify a court in departing from the plain meaning of words in search of an intention which the words themselves did not suggest." United I respectfully dissent.

Justice Breyer

dissenting

Setser v. United States

https://www.courtlistener.com/opinion/626206/setser-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/626206/

2011-041

The Sentencing Reform Act of 1984 seeks to reform federal sentencing practices by creating a federal Sentenc- ing Commission instructed to develop and to promulgate federal Sentencing Guidelines. The provision of the Act here at issue concerns “multiple sentences.” See 18 U.S. C. §3584. It brings into focus a difficult Guidelines- related problem: How should a federal judge sentence an offender where the offender has been convicted of having violated several different statutes? The convictions may have taken place all at the same time. Or, some convic- tions might have taken place at an earlier time, the of- fender may already have been sentenced to prison, and indeed the offender may still be serving that sentence. The federal judge must decide the extent to which a sen- tence attached to one conviction should be served concur- rently or consecutively with sentences attached to other convictions. An understanding of the nature of this general problem and the Sentencing Commission’s statutorily foreseen solutions will help the reader understand why, in my view, the better legal answer to the question before us is that a federal sentencing judge does not have the power to order that a “federal sentence be consecutive to an anticipated 2 SETSER v. UNITED STATES BREYER, J., dissenting state sentence that has not yet been imposed.” Ante, at 1. I The Sentencing Reform Act (SRA) has two overall objec- tives. See Barber v. Thomas, 560 U. S. __, __ (2010) (slip op., at 7); see also United States Sentencing Commission, Guidelines Manual §1A3, p. 1.2 (Nov. 1987) (USSG) (ad- dressing statutory objectives). First, it seeks greater honesty in sentencing. Instead of a parole commission and a judge trying to second-guess each other about the time an offender will actually serve in prison, the SRA tries to create a sentencing system that will require the offender actually to serve most of the sentence the judge imposes. See Mistretta v. United States, 488 U.S. 361, 367 (1989) (“[The SRA] makes all sentences basically determinate”). Second, the Act seeks greater fairness in sentencing through the creation of Guidelines that will increase the likelihood that two offenders who engage in roughly simi- lar criminal behavior will receive roughly similar sen- tences. See Barber, supra, at ___ (slip op., at 7) (noting that Congress sought to achieve, in part, “increased sen- tencing uniformity”). To implement these reforms, the SRA instructs the Commission to write Guidelines that inevitably move in the direction of increased “real offense” sentencing. See USSG §1A2, p. 1.1. (describing how statute, e.g., by insist- ing upon categories of offense behavior and offender char- acteristics, leads to this result). In principle, real offense sentencing would impose the same sentence upon different offenders who engage in the same real conduct irrespective of the statutes under which they are charged. Real offense sentencing, for example, would mean that two individuals, both of whom rob a bank and injure a teller, would receive the same sentence even if the Government charges one of them under a bank robbery statute and the other under an assault statute. See, e.g., USSG App. A (listing federal Cite as: 566 U. S. ____ (2012) 3 BREYER, J., dissenting statutory offenses, while keying them to specific individual Guidelines that determine sentence based upon likely actual behavior). In the event, the Guidelines move the sentencing system in this direction while simultaneously recognizing that other factors require considerable modifi- cation of the real offense principle. See USSG §1A4(a) (“real offense vs. charge offense sentencing”). Nonetheless the “real offense” goal influenced the Act’s, and the Commission’s, objectives in respect to the sentenc- ing of an offender with multiple convictions. Insofar as several convictions arise out of the same course of behav- ior, the sentencing judge should treat the crimes underly- ing the convictions as if they were all part of a single crime and sentence accordingly. But, insofar as the crimes un- derlying the convictions arise out of different courses of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were not part of a single crime and should see that the ultimate sentence reflects that fact. To achieve these objectives is easier said than done. For one thing, it requires a definition of what counts as the same course of behavior. The Guidelines set forth that definition in §1B1.3, p. 1.17 (“Relevant Conduct”). For another thing, statutes and Guidelines that set forth related instructions must take into account the fact that sentencing-related circumstances can prove highly com- plex. To take a fairly simple example, suppose that a defendant is convicted of both robbery and impersonating a federal official, that he has engaged in a single course of behavior, but that neither the robbery nor the impersona- tion Guidelines take account of the other. Instructions about concurrent/consecutive sentences must give the judge an idea about what to do in such a case. They must also take account of the fact that a maximum penalty contained in a statute will trump a greater penalty con- tained in a Guideline. And they must tell the judge (faced 4 SETSER v. UNITED STATES BREYER, J., dissenting with multiple convictions) what to do where that is so. Reflecting these, and other, complexities, the Guidelines contain complex instructions about how to sentence where the offender is convicted of “Multiple Counts,” see USSG §3D, or has previously been convicted of a crime for which he is “subject to an Un-discharged Term of Imprisonment,” see §5G1.3. The Guidelines also tell the sentencing judge how, through the use of partially concurrent and partially consecutive sentences, to build a total sentence that meets the Guidelines’ requirements. See §§5G1.2(d), 5G1.3. With this background it becomes easier to understand the statutory provisions before us. They reflect the fact that Congress expected sentencing judges, when faced with a defendant convicted of multiple crimes, to construct a sentence that would, at least to a degree, reflect the defendant’s real underlying behavior. Where two convic- tions reflect in whole or in part the same behavior, the overall sentences should reflect that fact, say by running concurrently. Accordingly, the statute says that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.” 18 U.S. C. §3584(a). And that statement reflects the fact that often (but not always) multiple convictions after a single trial will reflect a sin- gle course of behavior (different aspects of which violate different criminal statutes). The statute also says that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Ibid. This statement reflects the fact that several convictions imposed after different trials are more likely to reflect unrelated behav- iors. In the first instance that the statute addresses, concurrent sentences are more likely to be appropriate; in the second, consecutive sentences are more likely to be appropriate. But that is not always so. Thus the statu- Cite as: 566 U. S. ____ (2012) 5 BREYER, J., dissenting tory provisions assure sentencing judges that they retain the power to reach a different conclusion. At this point, I would ask the question that this case poses. Why does the statute say nothing about a sentenc- ing judge imposing a sentence that might run consecu- tively with a sentence that a (typically different) judge has not yet imposed? The answer is this: Because the sentenc- ing judge normally does not yet know enough about the behavior that underlies (or will underlie) a sentence that has not yet been imposed. Normally the sentencing judge does not know, for example, (a) what that sentence will be, (b) whether the behavior underlying that later sentence constitutes part of the same course of behavior that under- lies the present sentence or, instead, is totally separate from the behavior underlying the present sentence, or (c) is partly the same and partly different. Even if the judge has an idea about what will happen, he does not know precisely what will happen; and precision in this matter is important. In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing- proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences. Of course, the Court is correct when it says that eventu- ally the sentences will run (either wholly in or in part) concurrently or consecutively. And someone must decide how they will run. Ante, at 2–3. But the Court is not correct when it says that this someone should be the first federal sentencing judge. Rather, the Executive and Judicial Branches have devised a system that can draw upon the intentions of that first federal judge, while apply- ing them in light of actual knowledge about what later happened. The Bureau of Prisons (BOP) in effect makes 6 SETSER v. UNITED STATES BREYER, J., dissenting the consecutive/concurrent decision after considering, among other things, “any statement by the court that imposed the sentence,” including statements “concerning the purposes for which the sentence to imprisonment was determined to be warranted.” 18 U.S. C. §3621(b)(4)(A). And its program statement provides that it will review the “intent of the federal sentencing court” when deciding whether in effect to make an earlier federal, and later state, sentence concurrent or consecutive. Dept. of Jus- tice, BOP, Program Statement 5160.05: Designation of State Institution for Service of Federal Sentence 4 (Jan. 16, 2003). The Bureau exercises this authority by desig- nating (or refusing to designate) the state prison where an offender is or will be incarcerated pursuant to his state sentence as the place where he will serve his federal sen- tence. 18 U.S. C. §3621(b). This exercise of authority by the Executive Branch is not constitutionally surprising. After all, “federal sentenc- ing” has “never . . . been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.” Mistretta, 488 U.S., at 364. And, until fairly recently the federal BOP decided (via parole) the far more global question of just how long (within broad limits) each imprisoned offender would serve. See id., at 367. Thus, the present Bureau involve- ment represents a further practical accommodation to a fact about the world, namely that the initial sentencing judge typically lacks important sentencing-related infor- mation about a second sentence that has not yet been imposed. II Given the purposes and the mechanics of the SRA’s sentencing system, just described, the better reading of the “multiple sentences” provision is a reading that denies a sentencing judge the authority to “order that the federal Cite as: 566 U. S. ____ (2012) 7 BREYER, J., dissenting sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 1. For one thing, nothing in the statute explicitly grants the judge that authority. The text refers to other circumstances, those that involve earlier or contemporaneous (multiple-count) convictions, while it does not refer to later imposed sentences. For another, exercise of any such authority would more likely hinder than advance the basic objectives of the SRA. As I have explained, supra, at 2–5, a sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second con- viction rests upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well. Further, I can find no significant tradition (pre- Guideline or post-Guideline) of federal judges imposing a sentence that runs consecutively with a sentence not yet imposed. The Court refers to four Courts of Appeals cases for the proposition that “traditionally” a judge possessed this authority. Ante, at 4. The opinions in three of the cases are each about a page long and do not discuss the matter here at issue. (They assume, without significant discussion, the existence of the relevant sentencing au- thority.) See Anderson v. United States, 405 F.2d 492, 493 (CA10 1969) (per curiam) (addressing the question whether a federal sentence runs from the date of its impo- 8 SETSER v. UNITED STATES BREYER, J., dissenting sition or from the date of entry into federal custody); United States v. Kanton, 362 F.2d 178, 179–180 (CA7 1966) (per curiam) (same); United States ex rel. Lester v. Parker, 404 F.2d 40, 41 (CA3 1968) (per curiam) (address- ing the question whether a sentence was insufficiently cer- tain for purposes of due process). The fourth case, Salley v. United States, 786 F.2d 546, 548 (CA2 1986), discusses the issue directly and takes the Court’s position. But, like the other three cases, it was decided before the Guidelines took effect (i.e., when the reasons for denying the authority were less strong). And, one judge on the panel disagreed in a separate opinion, and in my view has the better of the argument. See id., at 548–550 (Newman, J., concurring in result); see also United States v. Eastman, 758 F.2d 1315, 1317 (CA9 1985) (holding that a judge lacks the here- relevant sentencing power). In any event, these instances are too few to constitute a “tradition.” In fact the Senate Committee Report accompanying the SRA provides strong evidence that there was no such tradition. S. Rep. No. 98–225 (1983). That Report thor- oughly surveyed prior law. It says that the SRA is a “comprehensive statement of the Federal law of sentenc- ing,” that it “describes in detail the kinds of sentences that may be imposed,” and that §3584 “provides the rules for determining the length of a term of imprisonment for a person convicted of more than one offense.” Id., at 50, 125–126. It further states that “[e]xisting law permits the imposition of either concurrent or consecutive sentences,” which practice it then describes as limited to two scenarios: “[t]erms of imprisonment imposed at the same time,” and those “imposed on a person already serving a prison term.” Id., at 126. It says the same when describing how §3584 is supposed to work. In neither place does it refer to a prac- tice of, or any authority for, imposing a prison term that runs consecutively with a future term not yet imposed. In addition, a grant of such authority risks at least Cite as: 566 U. S. ____ (2012) 9 BREYER, J., dissenting occasional incoherence. For example, the statute, after setting forth the court’s authority to impose a sentence of imprisonment that runs either concurrently or consecu- tively with other terms imposed in the same or in earlier proceedings, creates an exception that says: “except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the at- tempt.” 18 U.S. C. §3584(a). Now suppose the Court were right, and a sentencing judge had the authority to run a present term consecutively with a not-yet-imposed future term. Would it not be important to apply this same “attempt” exception in such instances as well? Indeed, the exception is phrased in categorical terms, and the legis- lative history in no way indicates that the exception ap- plies only occasionally. See S. Rep. No. 98–225, at 126 (“[C]onsecutive terms of imprisonment may not, contrary to current law, be imposed for [attempt] and for an offense that was the sole objective of the attempt” (emphasis added)). Yet it is difficult, if not impossible, to read the statute’s language as broadening the exception beyond the statutorily listed scenarios. Or, consider, for example, an offender tried for arguably related crimes in two different federal courts at two differ- ent times. The Court’s reading would not only allow the second judge to order concurrent service with the first sentence if warranted, as the statute explicitly permits, but it would also allow the first judge to make an analo- gous but anticipatory order based upon the sentence he expected the second judge would impose. But where com- plex forms of criminal behavior are at issue, these differ- ent judges may reach different conclusions. The result may well be conflict and confusion. Finally, as I said above, supra, at 5–6, a more practical solution to potential problems presented by a future sen- tencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal 10 SETSER v. UNITED STATES BREYER, J., dissenting and state sentences and is well situated to take into ac- count both the intent of the first sentencing judge and the specific facts developed in the second sentencing. The relevant statute provides that “[t]he Bureau may desig- nate any available penal or correctional facility . . . , whether maintained by the Federal Government or other- wise . . . .” 18 U.S. C. §3621(b). And in reliance on this authority, the Bureau has concluded that it has the power to “designat[e] . . . a state institution for concurrent ser- vice of a federal sentence.” Program Statement 5160.05, at 1. The Program Statement further provides that exer- cise of this power will be guided by, in part, “the intent of the federal sentencing court” in addition to “any other pertinent information regarding the inmate.” Id., at 4. The Court’s only criticism of this system is that it is less “natural” to read the statute “as giving the Bureau of Prisons what amounts to sentencing authority.” Ante, at 8. But what is unnatural about giving the Bureau that authority? The sentencing process has long involved cooperation among the three branches of Government. Mistretta, 488 U.S., at 364. And until the Guidelines the BOP itself decided, within broad limits, precisely how much prison time every typical offender would serve. Even today, it still decides that question within certain limits. 18 U.S. C. §3624 (2006 ed. and Supp. IV) (delegat- ing to the BOP authority to calculate “good time credit,” which in effect reduces a prisoner’s term of incarceration); see also Barber, 560 U. S., at __ (slip op., at 1). Although Congress limited the Bureau’s authority in this respect, there is nothing unnatural about leaving the Bureau with a small portion of that authority—particularly where doing so helps significantly to alleviate a small, but im- portant, technical problem in the application of the SRA’s sentencing system. Cite as: 566 U. S. ____ (2012) 11 BREYER, J., dissenting * * * Because the Court does not ask why the “multiple sen- tencing” provision leaves out the authority at issue— concerning the not-yet-imposed sentence—it reaches what I believe is the wrong result. Consequently, with respect, I dissent

The Sentencing Reform Act of 1984 seeks to reform federal sentencing practices by creating a federal Sentenc- ing Commission instructed to develop and to promulgate federal Sentencing Guidelines. The provision of the Act here at issue concerns “multiple sentences.” See 18 U.S. C. It brings into focus a difficult Guidelines- related problem: How should a federal judge sentence an offender where the offender has been convicted of having violated several different statutes? The convictions may have taken place all at the same time. Or, some convic- tions might have taken place at an earlier time, the of- fender may already have been sentenced to prison, and indeed the offender may still be serving that sentence. The federal judge must decide the extent to which a sen- tence attached to one conviction should be served concur- rently or consecutively with sentences attached to other convictions. An understanding of the nature of this general problem and the Sentencing Commission’s statutorily foreseen solutions will help the reader understand why, in my view, the better legal answer to the question before us is that a federal sentencing judge does not have the power to order that a “federal sentence be consecutive to an anticipated 2 SETSER v. UNITED STATES BREYER, J., dissenting state sentence that has not yet been imposed.” Ante, at 1. I The Sentencing Reform Act (SRA) has two overall objec- tives. See v. Thomas, 560 U. S. (2010) (slip op., at 7); see also United States Sentencing Commission, Guidelines Manual p. 1.2 (Nov. 1987) (USSG) (ad- dressing statutory objectives). First, it seeks greater honesty in sentencing. Instead of a parole commission and a judge trying to second-guess each other about the time an offender will actually serve in prison, the SRA tries to create a sentencing system that will require the offender actually to serve most of the sentence the judge imposes. See (“[The SRA] makes all sentences basically determinate”). Second, the Act seeks greater fairness in sentencing through the creation of Guidelines that will increase the likelihood that two offenders who engage in roughly simi- lar criminal behavior will receive roughly similar sen- tences. See at (slip op., at 7) (noting that Congress sought to achieve, in part, “increased sen- tencing uniformity”). To implement these reforms, the SRA instructs the Commission to write Guidelines that inevitably move in the direction of increased “real offense” sentencing. See USSG p. 1.1. (describing how statute, e.g., by insist- ing upon categories of offense behavior and offender char- acteristics, leads to this result). In principle, real offense sentencing would impose the same sentence upon different offenders who engage in the same real conduct irrespective of the statutes under which they are charged. Real offense sentencing, for example, would mean that two individuals, both of whom rob a bank and injure a teller, would receive the same sentence even if the Government charges one of them under a bank robbery statute and the other under an assault statute. See, e.g., USSG App. A (listing federal Cite as: 566 U. S. (2012) 3 BREYER, J., dissenting statutory offenses, while keying them to specific individual Guidelines that determine sentence based upon likely actual behavior). In the event, the Guidelines move the sentencing system in this direction while simultaneously recognizing that other factors require considerable modifi- cation of the real offense principle. See USSG (“real offense vs. charge offense sentencing”). Nonetheless the “real offense” goal influenced the Act’s, and the Commission’s, objectives in respect to the sentenc- ing of an offender with multiple convictions. Insofar as several convictions arise out of the same course of behav- ior, the sentencing judge should treat the crimes underly- ing the convictions as if they were all part of a single crime and sentence accordingly. But, insofar as the crimes un- derlying the convictions arise out of different courses of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were not part of a single crime and should see that the ultimate sentence reflects that fact. To achieve these objectives is easier said than done. For one thing, it requires a definition of what counts as the same course of behavior. The Guidelines set forth that definition in p. 1.17 (“Relevant Conduct”). For another thing, statutes and Guidelines that set forth related instructions must take into account the fact that sentencing-related circumstances can prove highly com- plex. To take a fairly simple example, suppose that a defendant is convicted of both robbery and impersonating a federal official, that he has engaged in a single course of behavior, but that neither the robbery nor the impersona- tion Guidelines take account of the other. Instructions about concurrent/consecutive sentences must give the judge an idea about what to do in such a case. They must also take account of the fact that a maximum penalty contained in a statute will trump a greater penalty con- tained in a Guideline. And they must tell the judge (faced 4 SETSER v. UNITED STATES BREYER, J., dissenting with multiple convictions) what to do where that is so. Reflecting these, and other, complexities, the Guidelines contain complex instructions about how to sentence where the offender is convicted of “Multiple Counts,” see USSG or has previously been convicted of a crime for which he is “subject to an Un-discharged Term of Imprisonment,” see The Guidelines also tell the sentencing judge how, through the use of partially concurrent and partially consecutive sentences, to build a total sentence that meets the Guidelines’ requirements. See 5G1.3. With this background it becomes easier to understand the statutory provisions before us. They reflect the fact that Congress expected sentencing judges, when faced with a defendant convicted of multiple crimes, to construct a sentence that would, at least to a degree, reflect the defendant’s real underlying behavior. Where two convic- tions reflect in whole or in part the same behavior, the overall sentences should reflect that fact, say by running concurrently. Accordingly, the statute says that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.” 18 U.S. C. And that statement reflects the fact that often (but not always) multiple convictions after a single trial will reflect a sin- gle course of behavior (different aspects of which violate different criminal statutes). The statute also says that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” This statement reflects the fact that several convictions imposed after different trials are more likely to reflect unrelated behav- iors. In the first instance that the statute addresses, concurrent sentences are more likely to be appropriate; in the second, consecutive sentences are more likely to be appropriate. But that is not always so. Thus the statu- Cite as: 566 U. S. (2012) 5 BREYER, J., dissenting tory provisions assure sentencing judges that they retain the power to reach a different conclusion. At this point, I would ask the question that this case poses. Why does the statute say nothing about a sentenc- ing judge imposing a sentence that might run consecu- tively with a sentence that a (typically different) judge has not yet imposed? The answer is this: Because the sentenc- ing judge normally does not yet know enough about the behavior that underlies (or will underlie) a sentence that has not yet been imposed. Normally the sentencing judge does not know, for example, (a) what that sentence will be, (b) whether the behavior underlying that later sentence constitutes part of the same course of behavior that under- lies the present sentence or, instead, is totally separate from the behavior underlying the present sentence, or (c) is partly the same and partly different. Even if the judge has an idea about what will happen, he does not know precisely what will happen; and precision in this matter is important. In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing- proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences. Of course, the Court is correct when it says that eventu- ally the sentences will run (either wholly in or in part) concurrently or consecutively. And someone must decide how they will run. Ante, at 2–3. But the Court is not correct when it says that this someone should be the first federal sentencing judge. Rather, the Executive and Judicial Branches have devised a system that can draw upon the intentions of that first federal judge, while apply- ing them in light of actual knowledge about what later happened. The Bureau of Prisons (BOP) in effect makes 6 SETSER v. UNITED STATES BREYER, J., dissenting the consecutive/concurrent decision after considering, among other things, “any statement by the court that imposed the sentence,” including statements “concerning the purposes for which the sentence to imprisonment was determined to be warranted.” 18 U.S. C. And its program statement provides that it will review the “intent of the federal sentencing court” when deciding whether in effect to make an earlier federal, and later state, sentence concurrent or consecutive. Dept. of Jus- tice, BOP, Program Statement 5160.05: Designation of State Institution for Service of Federal Sentence 4 (Jan. 16, 2003). The Bureau exercises this authority by desig- nating (or refusing to designate) the state prison where an offender is or will be incarcerated pursuant to his state sentence as the place where he will serve his federal sen- tence. 18 U.S. C. This exercise of authority by the Executive Branch is not constitutionally surprising. After all, “federal sentenc- ing” has “never been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.” 488 U.S., at 364. And, until fairly recently the federal BOP decided (via parole) the far more global question of just how long (within broad limits) each imprisoned offender would serve. See at Thus, the present Bureau involve- ment represents a further practical accommodation to a fact about the world, namely that the initial sentencing judge typically lacks important sentencing-related infor- mation about a second sentence that has not yet been imposed. II Given the purposes and the mechanics of the SRA’s sentencing system, just described, the better reading of the “multiple sentences” provision is a reading that denies a sentencing judge the authority to “order that the federal Cite as: 566 U. S. (2012) 7 BREYER, J., dissenting sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 1. For one thing, nothing in the statute explicitly grants the judge that authority. The text refers to other circumstances, those that involve earlier or contemporaneous (multiple-count) convictions, while it does not refer to later imposed sentences. For another, exercise of any such authority would more likely hinder than advance the basic objectives of the SRA. As I have at 2–5, a sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second con- viction rests upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well. Further, I can find no significant tradition (pre- Guideline or post-Guideline) of federal judges imposing a sentence that runs consecutively with a sentence not yet imposed. The Court refers to four Courts of Appeals cases for the proposition that “traditionally” a judge possessed this authority. Ante, The opinions in three of the cases are each about a page long and do not discuss the matter here at issue. (They assume, without significant discussion, the existence of the relevant sentencing au- thority.) See 493 (CA10 1969) (addressing the question whether a federal sentence runs from the date of its impo- 8 SETSER v. UNITED STATES BREYER, J., dissenting sition or from the date of entry into federal custody); United 179–180 (CA7 1966) (same); United States ex rel. Lester v. Parker, (address- ing the question whether a sentence was insufficiently cer- tain for purposes of due process). The fourth case, Salley v. United States, discusses the issue directly and takes the Court’s position. But, like the other three cases, it was decided before the Guidelines took effect (i.e., when the reasons for denying the authority were less strong). And, one judge on the panel disagreed in a separate opinion, and in my view has the better of the argument. See at –550 (Newman, J., concurring in result); see also United 1317 (CA9 1985) (holding that a judge lacks the here- relevant sentencing power). In any event, these instances are too few to constitute a “tradition.” In fact the Senate Committee Report accompanying the SRA provides strong evidence that there was no such tradition. S. Rep. No. 98–225 (1983). That Report thor- oughly surveyed prior law. It says that the SRA is a “comprehensive statement of the Federal law of sentenc- ing,” that it “describes in detail the kinds of sentences that may be imposed,” and that “provides the rules for determining the length of a term of imprisonment for a person convicted of more than one offense.” 125–126. It further states that “[e]xisting law permits the imposition of either concurrent or consecutive sentences,” which practice it then describes as limited to two scenarios: “[t]erms of imprisonment imposed at the same time,” and those “imposed on a person already serving a prison term.” It says the same when describing how is supposed to work. In neither place does it refer to a prac- tice of, or any authority for, imposing a prison term that runs consecutively with a future term not yet imposed. In addition, a grant of such authority risks at least Cite as: 566 U. S. (2012) 9 BREYER, J., dissenting occasional incoherence. For example, the statute, after setting forth the court’s authority to impose a sentence of imprisonment that runs either concurrently or consecu- tively with other terms imposed in the same or in earlier proceedings, creates an exception that says: “except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the at- tempt.” 18 U.S. C. Now suppose the Court were right, and a sentencing judge had the authority to run a present term consecutively with a not-yet-imposed future term. Would it not be important to apply this same “attempt” exception in such instances as well? Indeed, the exception is phrased in categorical terms, and the legis- lative history in no way indicates that the exception ap- plies only occasionally. See S. Rep. No. 98–225, (“[C]onsecutive terms of imprisonment may not, contrary to current law, be imposed for [attempt] and for an offense that was the sole objective of the attempt” (emphasis added)). Yet it is difficult, if not impossible, to read the statute’s language as broadening the exception beyond the statutorily listed scenarios. Or, consider, for example, an offender tried for arguably related crimes in two different federal courts at two differ- ent times. The Court’s reading would not only allow the second judge to order concurrent service with the first sentence if warranted, as the statute explicitly permits, but it would also allow the first judge to make an analo- gous but anticipatory order based upon the sentence he expected the second judge would impose. But where com- plex forms of criminal behavior are at issue, these differ- ent judges may reach different conclusions. The result may well be conflict and confusion. Finally, as I said at 5–6, a more practical solution to potential problems presented by a future sen- tencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal 10 SETSER v. UNITED STATES BREYER, J., dissenting and state sentences and is well situated to take into ac- count both the intent of the first sentencing judge and the specific facts developed in the second sentencing. The relevant statute provides that “[t]he Bureau may desig- nate any available penal or correctional facility whether maintained by the Federal Government or other- wise” 18 U.S. C. And in reliance on this authority, the Bureau has concluded that it has the power to “designat[e] a state institution for concurrent ser- vice of a federal sentence.” Program Statement 5160.05, at 1. The Program Statement further provides that exer- cise of this power will be guided by, in part, “the intent of the federal sentencing court” in addition to “any other pertinent information regarding the inmate.” The Court’s only criticism of this system is that it is less “natural” to read the statute “as giving the Bureau of Prisons what amounts to sentencing authority.” Ante, at 8. But what is unnatural about giving the Bureau that authority? The sentencing process has long involved cooperation among the three branches of Government. And until the Guidelines the BOP itself decided, within broad limits, precisely how much prison time every typical offender would serve. Even today, it still decides that question within certain limits. 18 U.S. C. (2006 ed. and Supp. IV) (delegat- ing to the BOP authority to calculate “good time credit,” which in effect reduces a prisoner’s term of incarceration); see also 560 U. S., at (slip op., at 1). Although Congress limited the Bureau’s authority in this respect, there is nothing unnatural about leaving the Bureau with a small portion of that authority—particularly where doing so helps significantly to alleviate a small, but im- portant, technical problem in the application of the SRA’s sentencing system. Cite as: 566 U. S. (2012) 11 BREYER, J., dissenting * * * Because the Court does not ask why the “multiple sen- tencing” provision leaves out the authority at issue— concerning the not-yet-imposed sentence—it reaches what I believe is the wrong result. Consequently, with respect, I dissent

Justice Scalia

concurring

Texaco Inc. v. Hasbrouck

https://www.courtlistener.com/opinion/112463/texaco-inc-v-hasbrouck/

https://www.courtlistener.com/api/rest/v3/clusters/112463/

1989-113

I agree with the Court that none of the arguments pressed by petitioner for removing its conduct from the coverage of the Robinson-Patman Act is persuasive. I cannot, however, adopt the Court's reasoning, which seems to create an exemption for functional discounts that are "reasonable" even though prohibited by the text of the Act. The Act provides: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent *577 competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." 15 U.S. C. § 13(a). As the Court notes, ante, at 556, sales of like goods in interstate commerce violate this provision if three conditions are met: (1) the seller discriminates in price between purchasers, (2) the effect of such discrimination may be to injure competition between the victim and beneficiaries of the discrimination or their customers, and (3) the discrimination is not cost based. Petitioner makes three arguments, one related to each of these conditions. First, petitioner argues that a price differential between purchasers at different levels of distribution is not discrimination in price. As the Court correctly concludes, that cannot be so. As long ago as FTC v. Morton Salt Co., 334 U.S. 37 (1948), we held that the Act prohibits differentials in the prices offered to wholesalers and retailers. True, in Morton Salt the retailers were being favored over the wholesalers, the reverse of the situation here. But if that factor could make any difference, it would bear not upon whether price discrimination occurred, but upon whether it affected competition, the point I address next. Second, petitioner argues that its practice of giving wholesalers Gull and Dompier discounts unavailable to retailer Hasbrouck could not have injured Hasbrouck's competition with retailers who purchased from Gull and Dompier. Any competitive advantage enjoyed by the competing retailers, petitioner asserts, was the product of independent decisions by Gull and Dompier to pass on the discounts to those retailers. This also is unpersuasive. The Act forbids price discrimination whose effect may be "to injure, destroy, or *578 prevent competition with any person who . . . knowingly receives the benefit of such discrimination, or with customers of [that person]." 15 U.S. C. § 13(a) (emphasis added). Obviously, that effect upon "competition with customers" occurs whether or not the beneficiary's choice to pass on the discount is his own. The existence of an implied "proximate cause" requirement that would cut off liability by reason of the voluntary act of passing on is simply implausible. This field is laden with "voluntary acts" of third persons that do not relieve the violator of liability — beginning with the act of the ultimate purchaser, who in the last analysis causes the injury to competition by "voluntarily" choosing to buy from the seller who offers the lower price that the price discrimination has made possible. The Act focuses not upon free will, but upon predictable commercial motivation; and it is just as predictable that a wholesaler will ordinarily increase sales (and thus profits) by passing on at least some of a price advantage, as it is that a retailer will ordinarily buy at the lower price. To say that when the Act refers to injury of competition "with customers" of the beneficiary it has in mind only those customers to whom the beneficiary is compelled to sell at the lower price is to assume that Congress focused upon the damage caused by the rare exception rather than the damage caused by the almost universal rule. The Court rightly rejects that interpretation. The independence of the pass-on decision is beside the point. Petitioner's third point relates to the third condition of liability (i. e., lack of a cost justification for the discrimination), but does not assert that such a justification is present here. Rather, joined by the United States as amicus curiae, petitioner argues at length that even if petitioner's discounts to Gull and Dompier cannot be shown to be cost based they should be exempted, because the "functional discount" is an efficient and legitimate commercial practice that is ordinarily cost based, though it is all but impossible to establish *579 cost justification in a particular case. The short answer to this argument is that it should be addressed to Congress. The Court does not, however, provide that response, but accepts this last argument in somewhat modified form. Petitioner has violated the Act, it says, only because the discount it gave to Gull and Dompier was not a "reasonable reimbursement for the value to [petitioner] of their actual marketing functions." Ante, at 562; see also ante, at 570. Relying on a mass of extratextual materials, the Court concludes that the Act permits such "reasonable" functional discounts even if the supplier cannot satisfy the "rigorous requirements of the cost justification defense." Ante, at 561. I find this conclusion quite puzzling. The language of the Act is straightforward: Any price discrimination whose effect "may be substantially. . . to injure, destroy, or prevent competition" is prohibited, unless it is immunized by the "cost justification" defense, i. e., unless it "make[s] only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which [the] commodities are . . . sold or delivered." 15 U.S. C. § 13(a). There is no exception for "reasonable" functional discounts that do not meet this requirement. Indeed, I am at a loss to understand what makes a functional discount "reasonable" unless it meets this requirement. It does not have to meet it penny for penny, of course: The "rigorous requirements of the cost justification defense" to which the Court refers, ante, at 561, are not the rigors of mathematical precision, but the rigors of proof that the amount of the discount and the amount of the cost saving are close enough that the difference cannot produce any substantial lessening of competition. See ante, at 561-562, n. 18. How is one to determine that a functional discount is "reasonable" except by proving (through the normally, alas, "rigorous" means) that it meets this test? Shall we use a nationwide average? I suppose a functional discount can be "reasonable" (in the relevant sense of being unlikely to subvert the purposes of *580 the Act) if it is not commensurate with the supplier's costs saved (as the cost justification defense requires), but is commensurate with the wholesaler's costs incurred in performing services for the supplier. Such a discount would not produce the proscribed effect upon competition, since if it constitutes only reimbursement for the wholesaler one would not expect him to pass it on. The relevant measure of the discount in order to determine "reasonableness" on that basis, however, is not the measure the Court applies to Texaco ("value to [the supplier] of [the distributor's] actual marketing functions," ante, at 562), but rather "cost to the distributor of the distributor's actual marketing functions" — which is of course not necessarily the same thing. I am therefore quite unable to understand what the Court has in mind by its "reasonable" functional discount that is not cost justified. To my mind, there is one plausible argument for the proposition that a functional basis for differential pricing ipso facto — cost justification or not — negates the probability of competitive injury, thus destroying an element of the plaintiff's prima facie case, see Falls City Industries, Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 434 (1983): In a market that is really functionally divided, retailers are in competition with one another, not with wholesalers. That competition among retailers cannot be injured by the supplier's giving lower prices to wholesalers — because if the price differential is passed on, all retailers will simply purchase from wholesalers instead of from the supplier. Or, to put it differently, when the market is functionally divided all competing retailers have the opportunity of obtaining the same price from wholesalers, and the supplier's functional price discrimination alone does not cause any injury to competition. Therefore (the argument goes), if functional division of the market is established, it should be up to the complaining retailer to show that some special factor (e. g., an agreement between the supplier and the wholesaler that the latter will not sell to the former's retailer-customers) prevents this normal market *581 mechanism from operating. As the Court notes, ante, at 571, n. 30, this argument was not raised by the parties here or below, and it calls forth a number of issues that would benefit from briefing and factual development. I agree that we should not decide the merit of this argument in the first instance. For the foregoing reasons, I concur in the judgment.

I agree with the Court that none of the arguments pressed by petitioner for removing its conduct from the coverage of the Robinson-Patman Act is persuasive. I cannot, however, adopt the Court's reasoning, which seems to create an exemption for functional discounts that are "reasonable" even though prohibited by the text of the Act. The Act provides: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent *577 competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." 15 U.S. C. 13(a). As the Court notes, ante, at 556, sales of like goods in interstate commerce violate this provision if three conditions are met: (1) the seller discriminates in price between purchasers, (2) the effect of such discrimination may be to injure competition between the victim and beneficiaries of the discrimination or their customers, and (3) the discrimination is not cost based. Petitioner makes three arguments, one related to each of these conditions. First, petitioner argues that a price differential between purchasers at different levels of distribution is not discrimination in price. As the Court correctly concludes, that cannot be so. As long ago as we held that the Act prohibits differentials in the prices offered to wholesalers and retailers. True, in Morton Salt the retailers were being favored over the wholesalers, the reverse of the situation here. But if that factor could make any difference, it would bear not upon whether price discrimination occurred, but upon whether it affected competition, the point I address next. Second, petitioner argues that its practice of giving wholesalers Gull and Dompier discounts unavailable to retailer Hasbrouck could not have injured Hasbrouck's competition with retailers who purchased from Gull and Dompier. Any competitive advantage enjoyed by the competing retailers, petitioner asserts, was the product of independent decisions by Gull and Dompier to pass on the discounts to those retailers. This also is unpersuasive. The Act forbids price discrimination whose effect may be "to injure, destroy, or *578 prevent competition with any person who knowingly receives the benefit of such discrimination, or with customers of [that person]." 15 U.S. C. 13(a) (emphasis added). Obviously, that effect upon "competition with customers" occurs whether or not the beneficiary's choice to pass on the discount is his own. The existence of an implied "proximate cause" requirement that would cut off liability by reason of the voluntary act of passing on is simply implausible. This field is laden with "voluntary acts" of third persons that do not relieve the violator of liability — beginning with the act of the ultimate purchaser, who in the last analysis causes the injury to competition by "voluntarily" choosing to buy from the seller who offers the lower price that the price discrimination has made possible. The Act focuses not upon free will, but upon predictable commercial motivation; and it is just as predictable that a wholesaler will ordinarily increase sales (and thus profits) by passing on at least some of a price advantage, as it is that a retailer will ordinarily buy at the lower price. To say that when the Act refers to injury of competition "with customers" of the beneficiary it has in mind only those customers to whom the beneficiary is compelled to sell at the lower price is to assume that Congress focused upon the damage caused by the rare exception rather than the damage caused by the almost universal rule. The Court rightly rejects that interpretation. The independence of the pass-on decision is beside the point. Petitioner's third point relates to the third condition of liability (i. e., lack of a cost justification for the discrimination), but does not assert that such a justification is present here. Rather, joined by the United States as amicus curiae, petitioner argues at length that even if petitioner's discounts to Gull and Dompier cannot be shown to be cost based they should be exempted, because the "functional discount" is an efficient and legitimate commercial practice that is ordinarily cost based, though it is all but impossible to establish *579 cost justification in a particular case. The short answer to this argument is that it should be addressed to Congress. The Court does not, however, provide that response, but accepts this last argument in somewhat modified form. Petitioner has violated the Act, it says, only because the discount it gave to Gull and Dompier was not a "reasonable reimbursement for the value to [petitioner] of their actual marketing functions." Ante, at 562; see also ante, at 570. Relying on a mass of extratextual materials, the Court concludes that the Act permits such "reasonable" functional discounts even if the supplier cannot satisfy the "rigorous requirements of the cost justification defense." Ante, at 561. I find this conclusion quite puzzling. The language of the Act is straightforward: Any price discrimination whose effect "may be substantially. to injure, destroy, or prevent competition" is prohibited, unless it is immunized by the "cost justification" defense, i. e., unless it "make[s] only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which [the] commodities are sold or delivered." 15 U.S. C. 13(a). There is no exception for "reasonable" functional discounts that do not meet this requirement. Indeed, I am at a loss to understand what makes a functional discount "reasonable" unless it meets this requirement. It does not have to meet it penny for penny, of course: The "rigorous requirements of the cost justification defense" to which the Court refers, ante, at 561, are not the rigors of mathematical precision, but the rigors of proof that the amount of the discount and the amount of the cost saving are close enough that the difference cannot produce any substantial lessening of competition. See ante, at 561-562, n. 18. How is one to determine that a functional discount is "reasonable" except by proving (through the normally, alas, "rigorous" means) that it meets this test? Shall we use a nationwide average? I suppose a functional discount can be "reasonable" (in the relevant sense of being unlikely to subvert the purposes of *580 the Act) if it is not commensurate with the supplier's costs saved (as the cost justification defense requires), but is commensurate with the wholesaler's costs incurred in performing services for the supplier. Such a discount would not produce the proscribed effect upon competition, since if it constitutes only reimbursement for the wholesaler one would not expect him to pass it on. The relevant measure of the discount in order to determine "reasonableness" on that basis, however, is not the measure the Court applies to Texaco ("value to [the supplier] of [the distributor's] actual marketing functions," ante, at 562), but rather "cost to the distributor of the distributor's actual marketing functions" — which is of course not necessarily the same thing. I am therefore quite unable to understand what the Court has in mind by its "reasonable" functional discount that is not cost justified. To my mind, there is one plausible argument for the proposition that a functional basis for differential pricing ipso facto — cost justification or not — negates the probability of competitive injury, thus destroying an element of the plaintiff's prima facie case, see Falls City Industries, : In a market that is really functionally divided, retailers are in competition with one another, not with wholesalers. That competition among retailers cannot be injured by the supplier's giving lower prices to wholesalers — because if the price differential is passed on, all retailers will simply purchase from wholesalers instead of from the supplier. Or, to put it differently, when the market is functionally divided all competing retailers have the opportunity of obtaining the same price from wholesalers, and the supplier's functional price discrimination alone does not cause any injury to competition. Therefore (the argument goes), if functional division of the market is established, it should be up to the complaining retailer to show that some special factor (e. g., an agreement between the supplier and the wholesaler that the latter will not sell to the former's retailer-customers) prevents this normal market *581 mechanism from operating. As the Court notes, ante, at 571, n. 30, this argument was not raised by the parties here or below, and it calls forth a number of issues that would benefit from briefing and factual development. I agree that we should not decide the merit of this argument in the first instance. For the foregoing reasons, I concur in the judgment.

per_curiam

per_curiam

INS v. Hibi

https://www.courtlistener.com/opinion/108872/ins-v-hibi/

https://www.courtlistener.com/api/rest/v3/clusters/108872/

1973-003

Respondent filed his petition for naturalization in the United States District Court for the Northern District of California on September 13, 1967. The District Court granted the petition, rejecting the negative recommendation of the naturalization examiner appointed by the Attorney General pursuant to § 335 of the Immigration and Nationality Act, 66 Stat. 255, 8 U.S. C. § 1446. The Court of Appeals affirmed, 475 F.2d 7 (CA9 1973), holding that even though the deadline fixed by Congress for the filing of applications such as respondent's had expired more than 20 years earlier, petitioner was "estopped" from relying on this fact. Respondent was born in Manila in 1917, and in February 1941 enlisted in the Philippine Scouts, a unit that was part of the United States Army. He was captured by the Japanese Armed Forces and released after six months' internment. In April 1945 after the liberation of the Philippines by Allied Forces, he rejoined the Scouts *6 and served until his discharge in December 1945. Sections 701 and 702 of the Nationality Act of 1940, as amended, provided for the naturalization of noncitizens who served honorably in the Armed Forces of the United States during World War II.[*] Section 701 *7 exempted certain alien servicemen who served outside the continental limits of the United States from some of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. An amendment to this section specified that all petitions filed under it had to be filed no later than December 31, 1946. Section 702 provided for the overseas naturalization of persons eligible for naturalization under § 701 who were not within the jurisdiction of any court authorized to naturalize aliens; naturalization under § 702 could take place only during active service in the Armed Forces. Section 705 authorized the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of the Act. Respondent entered the United States for the first and only time on April 25, 1964, more than 17 years after the expiration of the time limit established by Congress for claiming naturalization under the "exemptions of the Act." He entered on a visitor-for-business visa, which expired on June 30, 1964. His subsequent petition for naturalization was based on the assertion that the Government was estopped from relying on the statutory time limit which Congress had attached to the provisions under which he claimed. The estoppel was said to arise from petitioner's failure to advise him, during the time he was *8 eligible, of his right to apply for naturalization, and from petitioner's failure to provide a naturalization representative in the Philippines during all of the time respondent and those in his class were eligible for naturalization. The District Court adopted respondent's contention, and its conclusions were upheld by the Court of Appeals. It is well settled that the Government is not in a position identical to that of a private litigant with respect to its enforcement of laws enacted by Congress. "As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. . . . A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it." Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917). Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent's class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress. While the issue of whether "affirmative misconduct" on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315 (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded *9 under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government. Respondent's effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail. The petition for certiorari is granted and the judgment of the Court of Appeals is reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.

Respondent filed his petition for naturalization in the United States District Court for the Northern District of California on September 13, 1967. The District Court granted the petition, rejecting the negative recommendation of the naturalization examiner appointed by the Attorney General pursuant to 335 of the Immigration and Nationality Act, 8 U.S. C. 1446. The Court of Appeals affirmed, holding that even though the deadline fixed by Congress for the filing of applications such as respondent's had expired more than 20 years earlier, petitioner was "estopped" from relying on this fact. Respondent was born in Manila in 1917, and in February 1941 enlisted in the Philippine Scouts, a unit that was part of the United States Army. He was captured by the Japanese Armed Forces and released after six months' internment. In April 1945 after the liberation of the Philippines by Allied Forces, he rejoined the Scouts *6 and served until his discharge in December 1945. Sections 701 and 702 of the Nationality Act of 1940, as amended, provided for the naturalization of noncitizens who served honorably in the Armed Forces of the United States during World War II.[*] Section 701 *7 exempted certain alien servicemen who served outside the continental limits of the United States from some of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. An amendment to this section specified that all petitions filed under it had to be filed no later than December 31, 1946. Section 702 provided for the overseas naturalization of persons eligible for naturalization under 701 who were not within the jurisdiction of any court authorized to naturalize aliens; naturalization under 702 could take place only during active service in the Armed Forces. Section 705 authorized the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of the Act. Respondent entered the United States for the first and only time on April 25, 1964, more than 17 years after the expiration of the time limit established by Congress for claiming naturalization under the "exemptions of the Act." He entered on a visitor-for-business visa, which expired on June 30, 1964. His subsequent petition for naturalization was based on the assertion that the Government was estopped from relying on the statutory time limit which Congress had attached to the provisions under which he claimed. The estoppel was said to arise from petitioner's failure to advise him, during the time he was *8 eligible, of his right to apply for naturalization, and from petitioner's failure to provide a naturalization representative in the Philippines during all of the time respondent and those in his class were eligible for naturalization. The District Court adopted respondent's contention, and its conclusions were upheld by the Court of Appeals. It is well settled that the Government is not in a position identical to that of a private litigant with respect to its enforcement of laws enacted by Congress. "As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it." Utah Power & Light Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent's class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress. While the issue of whether "affirmative misconduct" on the part of the Government might estop it from denying citizenship was left open in no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded *9 under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government. Respondent's effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail. The petition for certiorari is granted and the judgment of the Court of Appeals is reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.

Justice Stevens

concurring

Massachusetts v. Upton

https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/

https://www.courtlistener.com/api/rest/v3/clusters/111172/

1983-093

In my opinion the judgment of the Supreme Judicial Court of Massachusetts reflects an error of a more fundamental character than the one this Court corrects today. It rested its decision on the Fourth Amendment to the United States Constitution without telling us whether the warrant was valid as a matter of Massachusetts law.[1] It has thereby increased its own burdens as well as ours. For when the case returns to that court, it must then review the probable-cause issue once again and decide whether or not a violation of the state constitutional protection against unreasonable searches and seizures has occurred. If such a violation did take place, much of that court's first opinion and all of this Court's opinion are for naught.[2] If no such violation occurred, the second *736 proceeding in that court could have been avoided by a ruling to that effect when the case was there a year ago. If the Magistrate had violated a state statute when he issued the warrant, surely the State Supreme Judicial Court would have so held and thereby avoided the necessity of deciding a federal constitutional question. I see no reason why it should not have followed the same sequence of analysis when an arguable violation of the State Constitution is disclosed by the record. As the Oregon Supreme Court has stated: "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law." Sterling v. Cupp, 290 Ore. 611, 614, 625 P.2d 123, 126 (1981).[3] The maintenance of the proper balance between the respective jurisdictions of state and federal courts is always a difficult task. In recent years I have been concerned by what I have regarded as an encroachment by this Court into territory that should be reserved for state judges. See, e. g., Michigan v. Long, 463 U.S. 1032, 1065 (1983) (STEVENS, J., dissenting); South Dakota v. Neville, 459 U.S. 553, 566 (1983) (STEVENS, J., dissenting); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 477-489 (1981) (STEVENS, J., dissenting); Idaho Department of Employment v. Smith, 434 U.S. 100, 103-105 (1977) (STEVENS, J., dissenting in part). The maintenance of this balance is, however, a two-way *737 street. It is also important that state judges do not unnecessarily invite this Court to undertake review of state-court judgments. I believe the Supreme Judicial Court of Massachusetts unwisely and unnecessarily invited just such review in this case. Its judgment in this regard reflects a misconception of our constitutional heritage and the respective jurisdictions of state and federal courts. The absence of a Bill of Rights in the Constitution proposed by the Federal Constitutional Convention of 1787 was a major objection to the Convention's proposal. See, e. g., 12 The Papers of Thomas Jefferson 438 (Boyd ed. 1955). In defense of the Convention's plan Alexander Hamilton argued that the enumeration of certain rights was not only unnecessary, given that such rights had not been surrendered by the people in their grant of limited powers to the Federal Government, but "would even be dangerous" on the ground that enumerating certain rights could provide a "plausible pretense" for the Government to claim powers not granted in derogation of the people's rights. The Federalist No. 84, pp. 573, 574 (Ford ed. 1898) (A. Hamilton). The latter argument troubled the First Congress during deliberations on the Bill of Rights, and its solution became the Ninth Amendment. See 1 Annals of Congress 439 (1789) (remarks of Rep. Madison). The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." To the extent that the Bill of Rights is applicable to the States under the Fourteenth Amendment, the principle embodied in the Ninth Amendment is applicable as well. The Ninth Amendment, it has been said, states but a truism. But that truism goes to the very core of the constitutional relationship between the individual and governmental authority, and, indeed, between sovereigns exercising authority over the individual. In my view, the court below lost sight of this truism, and permitted the enumeration of certain rights in the Fourth Amendment to disparage the rights retained by the people of *738 Massachusetts under Art. 14 of the Massachusetts Declaration of Rights. It is of course not my role to state what rights Art. 14 confers upon the people of Massachusetts; under our system of federalism, only Massachusetts can do that. The state court refused to perform that function, however, and instead strained to rest its judgment on federal constitutional grounds. Whatever protections Art. 14 does confer are surely disparaged when the Supreme Judicial Court of Massachusetts refuses to adjudicate their very existence because of the enumeration of certain rights in the Constitution of the United States. The rights conferred by Art. 14 may not only exceed the rights conferred by the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment as construed by the state court. The dissent followed the approach of the majority to its logical conclusion, stating that there "appears to be no logical basis, and no support in the case law, for interpreting the term `cause' in art. 14 differently from the `probable cause' requirement of the Fourth Amendment." 390 Mass. 562, 580, 458 N.E.2d 717, 727 (1983). "The right question," however, "is not whether a state's guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state's guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state's law may prove to be more protective than federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised." Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 179 (1984). It must be remembered that for the first century of this Nation's history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected *739 the liberties of the people of the several States from abuse by state authorities. The Bill of Rights is now largely applicable to state authorities and is the ultimate guardian of individual rights. The States in our federal system, however, remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain. Accordingly, I concur in the Court's judgment.

In my opinion the judgment of the Supreme Judicial Court of Massachusetts reflects an error of a more fundamental character than the one this Court corrects today. It rested its decision on the Fourth Amendment to the United States Constitution without telling us whether the warrant was valid as a matter of Massachusetts law.[1] It has thereby increased its own burdens as well as ours. For when the case returns to that court, it must then review the probable-cause issue once again and decide whether or not a violation of the state constitutional protection against unreasonable searches and seizures has occurred. If such a violation did take place, much of that court's first opinion and all of this Court's opinion are for naught.[2] If no such violation occurred, the second *736 proceeding in that court could have been avoided by a ruling to that effect when the case was there a year ago. If the Magistrate had violated a state statute when he issued the warrant, surely the State Supreme Judicial Court would have so held and thereby avoided the necessity of deciding a federal constitutional question. I see no reason why it should not have followed the same sequence of analysis when an arguable violation of the State Constitution is disclosed by the record. As the Oregon Supreme Court has stated: "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law."[3] The maintenance of the proper balance between the respective jurisdictions of state and federal courts is always a difficult task. In recent years I have been concerned by what I have regarded as an encroachment by this Court into territory that should be reserved for state judges. See, e. g., ; South ; ; Idaho Department of The maintenance of this balance is, however, a two-way *737 street. It is also important that state judges do not unnecessarily invite this Court to undertake review of state-court judgments. I believe the Supreme Judicial Court of Massachusetts unwisely and unnecessarily invited just such review in this case. Its judgment in this regard reflects a misconception of our constitutional heritage and the respective jurisdictions of state and federal courts. The absence of a Bill of Rights in the Constitution proposed by the Federal Constitutional Convention of 1787 was a major objection to the Convention's proposal. See, e. g., 12 The Papers of Thomas Jefferson 438 (Boyd ed. 1955). In defense of the Convention's plan Alexander Hamilton argued that the enumeration of certain rights was not only unnecessary, given that such rights had not been surrendered by the people in their grant of limited powers to the Federal Government, but "would even be dangerous" on the ground that enumerating certain rights could provide a "plausible pretense" for the Government to claim powers not granted in derogation of the people's rights. The Federalist No. 84, pp. 573, 574 (Ford ed. 1898) (A. Hamilton). The latter argument troubled the First Congress during deliberations on the Bill of Rights, and its solution became the Ninth Amendment. See 1 Annals of Congress 439 (1789) (remarks of Rep. Madison). The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." To the extent that the Bill of Rights is applicable to the States under the Fourteenth Amendment, the principle embodied in the Ninth Amendment is applicable as well. The Ninth Amendment, it has been said, states but a truism. But that truism goes to the very core of the constitutional relationship between the individual and governmental authority, and, indeed, between sovereigns exercising authority over the individual. In my view, the court below lost sight of this truism, and permitted the enumeration of certain rights in the Fourth Amendment to disparage the rights retained by the people of *738 Massachusetts under Art. 14 of the Massachusetts Declaration of Rights. It is of course not my role to state what rights Art. 14 confers upon the people of Massachusetts; under our system of federalism, only Massachusetts can do that. The state court refused to perform that function, however, and instead strained to rest its judgment on federal constitutional grounds. Whatever protections Art. 14 does confer are surely disparaged when the Supreme Judicial Court of Massachusetts refuses to adjudicate their very existence because of the enumeration of certain rights in the Constitution of the United States. The rights conferred by Art. 14 may not only exceed the rights conferred by the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment as construed by the state court. The dissent followed the approach of the majority to its logical conclusion, stating that there "appears to be no logical basis, and no support in the case law, for interpreting the term `cause' in art. 14 differently from the `probable cause' requirement of the Fourth Amendment." "The right question," however, "is not whether a state's guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state's guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state's law may prove to be more protective than federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised." Linde, E Pluribus — Constitutional Theory and State Courts, It must be remembered that for the first century of this Nation's history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected *739 the liberties of the people of the several States from abuse by state authorities. The Bill of Rights is now largely applicable to state authorities and is the ultimate guardian of individual rights. The States in our federal system, however, remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain. Accordingly, I concur in the Court's judgment.

Justice Ginsburg

dissenting

Burwell v. Hobby Lobby Stores, Inc.

https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2681317/

2013-070

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt- outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a 2 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1 The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommoda- tions so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommo- dation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent. I “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1992). Congress acted on that understand- —————— 1 TheCourt insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommoda- tion, currently limited to religious nonprofit organizations, to encom- pass commercial enterprises. See ante, at 3–4. With that accommoda- tion extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”). Cite as: 573 U. S. ____ (2014) 3 GINSBURG, J., dissenting ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases. A The Affordable Care Act (ACA), in its initial form, speci- fied three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independ- ent panel of experts. The scheme had a large gap, how- ever; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (state- ment of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health. Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost —————— 2 See 42 U.S. C. §300gg–13(a)(1)–(3) (group health plans must pro- vide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”). 4 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“co- payments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the spon- sors comprehended, would yield important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This ex- panded access will reduce unintended pregnancies.”). As altered by the Women’s Health Amendment’s pas- sage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preven- tive care and screenings . . . as provided for in comprehen- sive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U.S. C. §300gg–13(a)(4). Thus charged, the HRSA devel- oped recommendations in consultation with the Institute of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3 The IOM convened a group of independent experts, includ- ing “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven- —————— 3 The IOM is an arm of the National Academy of Sciences, an organi- zation Congress established “for the explicit purpose of furnishing advice to the Government.” Public Citizen v. Department of Justice, 491 U.S. 440, 460, n. 11 (1989) (internal quotation marks omitted). Cite as: 573 U. S. ____ (2014) 5 GINSBURG, J., dissenting tive coverage should include the “full range” of FDA- approved contraceptive methods. Id., at 10. See also id., at 102–110. In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congres- sional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); id., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”). In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 Thereafter, HHS, the Depart- ment of Labor, and the Department of Treasury promul- gated regulations requiring group health plans to include coverage of the contraceptive services recommended in the —————— 4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012). 6 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulations as the contraceptive coverage requirement. B While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny cov- erage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Re- jecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers. II Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). In Smith, two members of the Native American Church were dis- —————— 5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715– 2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury). 6 Separating moral convictions from religious beliefs would be of ques- tionable legitimacy. See Welsh v. United States, 398 U.S. 333, 357–358 (1970) (Harlan, J., concurring in result). 7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga. Cite as: 573 U. S. ____ (2014) 7 GINSBURG, J., dissenting missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential ele- ment of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the inci- dental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individ- ual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive cover- age requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental. Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Cones- toga seek. Accommodations to religious beliefs or obser- vances, the Court has clarified, must not significantly impinge on the interests of third parties.8 —————— 8 See Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommoda- tion would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. §2000cc et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005); see id., at 722 (“an accommodation must be measured so that it does not override other significant interests”). A 8 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P.3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919). III A Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling govern- mental interest.” 42 U.S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 424 (2006). RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling —————— balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommoda- tion to religious beliefs and practices. Cite as: 573 U. S. ____ (2014) 9 GINSBURG, J., dissenting interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” §2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental in- terests.”); ante, at 48 (agreeing that the pre-Smith compel- ling interest test is “workable” and “strike[s] sensible balances”). The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious prac- tice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators —————— 9 Under Sherbert and Yoder, the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 894 (1990) (O’Connor, J., concurring in judgment). 10 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives). B Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a meas- ure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. §2000cc et seq., which altered RFRA’s defini- tion of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of reli- gion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4) (2012 ed.) (cross- referencing §2000cc–5). That definitional change, accord- ing to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s altera- tion clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to in- quire whether a government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F.3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep. Cite as: 573 U. S. ____ (2014) 11 GINSBURG, J., dissenting No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F.3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, 265 F.3d 1072, 1073 (CADC 2001) (“The [RLUIPA] amendments did not alter RFRA’s basic prohi- bition that the ‘[g]overnment shall not substantially bur- den a person’s exercise of religion.’ ”).10 Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling inter- est. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of Boerne v. Flores, 521 U.S. 507 (1997)). See also ante, at 6, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same). The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “com- pelling interest test” a “least restrictive means” require- ment. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in Sherbert], the Government must demon- —————— 10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U.S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of reli- gion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety. 12 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Sen- ate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock). Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s pre- Smith jurisprudence. See Sherbert, 374 U.S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Reli- gious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).11 C With RFRA’s restorative purpose in mind, I turn to the —————— 11 The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U.S. 611, 639–640 (1948) (dissenting opinion). Cite as: 573 U. S. ____ (2014) 13 GINSBURG, J., dissenting Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consid- eration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corpo- rations rank among “person[s]” who “exercise . . . reli- gion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their reli- gious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest? Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis. 1 RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially bur- den a person’s exercise of religion.” 42 U.S. C. §2000bb– 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dic- tionary Act, 1 U.S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U.S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether —————— 12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious as- sembl[ies] or institution[s].” 42 U.S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regula- 14 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting a corporation qualifies as a “person” capable of exercis- ing religion is an inquiry one cannot answer without refer- ence to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F.3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations. Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex- emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 466 (2010) (opin- ion concurring in part and dissenting in part). The First Amendment’s free exercise protections, the —————— tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26. 13 The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961), as “suggest[ing] . . . that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litiga- tion. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because Braunfeld v. Brown, 366 U.S. 599 (1961), which upheld a similar closing law, was fatal to their claim on the merits. 366 U.S., at 631. Cite as: 573 U. S. ____ (2014) 15 GINSBURG, J., dissenting Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many indi- viduals, religious activity derives meaning in large meas- ure from participation in a larger religious community,” and “furtherance of the autonomy of religious organiza- tions often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “spe- cial solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how- ever, is just that. No such solicitude is traditional for com- mercial organizations.15 Indeed, until today, religious —————— 14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Benefi­ cente União do Vegetal, 546 U.S. 418 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 (1990). 15 Typically, Congress has accorded to organizations religious in char- acter religion-based exemptions from statutes of general application. E.g., 42 U.S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U.S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemp- tions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28. The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U.S. C. §§300a–7(b)(2) and 238n(a), and infers from them that “Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by §238n(a) differs significantly from the protection provided by 16 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting exemptions had never been extended to any entity operat- ing in “the commercial, profit-making world.” Amos, 483 U.S., at 337.16 The reason why is hardly obscure. Religious organiza- tions exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the —————— RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See §238n(c) (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, . . . may be able to invoke [§238n(a)] . . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, which would amend the definition of “health care entity” in §238n to include “hospital[s],” “health insurance plan[s],” and other health care facilities). These provisions are reveal- ing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among those eligible for a religious accommodation. Moreover, the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescis- sions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as the Court believes, RFRA opened all statutory schemes to religion- based challenges by for-profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort. 16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith.” Ante, at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-and- blood individuals who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (citing Bridges v. Wixon, 326 U.S. 135, 148 (1945)), and a fortiori, RFRA. Cite as: 573 U. S. ____ (2014) 17 GINSBURG, J., dissenting work force of for-profit corporations. See 42 U.S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, Inc. v. Hardison, 432 U.S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight. Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Con- gress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (Congress does not “hide elephants in mouse- holes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for- profit corporations. See Hobby Lobby Stores, Inc. v. Sebe­ lius, 723 F.3d 1114, 1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corpora- tions”). See also Senators Brief 10–13 (none of the —————— 17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without refer- ence to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health haz- ards employees who do not subscribe to their employers’ religious beliefs. 18 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations). The Court notes that for-profit corporations may sup- port charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concur- ring) (criticizing the Government for “distinguishing be- tween different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiasti- cal and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non- —————— 18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. Ante, at 19. See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accom- modations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”). Cite as: 573 U. S. ____ (2014) 19 GINSBURG, J., dissenting profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a commu- nity of believers].” Gilardi, 733 F.3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted). Citing Braunfeld v. Brown, 366 U.S. 599 (1961), the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obliga- tions. One might ask why the separation should hold only when it serves the interest of those who control the corpo- ration. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits. The Court’s determination that RFRA extends to for- profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA —————— 19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demon- strates, such claims are indeed pursued by large corporations, employ- ing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is 20 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith. 2 Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substan- tially burden[s] [their] exercise of religion.” 42 U.S. C. §2000bb–1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See —————— hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve- nues and employs some 140,000 persons. See Forbes, America’s Larg- est Private Companies 2013, available at http://www.forbes.com/ largest-private-companies/. Nor does the Court offer any instruction on how to resolve the dis- putes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selecting the state of incorporation”); id., §14:11 (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solu- tions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substan- tial,” ante, at 36? Cite as: 573 U. S. ____ (2014) 21 GINSBURG, J., dissenting 139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Govern- ment to justify every action that has some effect on reli- gious exercise.” Ibid. The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See Thomas, 450 U.S., at 715 (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U.S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, dis- tinguishes between “factual allegations that [plaintiffs’] —————— 20 The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantial- ity of the alleged burden. 21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See supra, at 7–8; infra, at 27. 22 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F.3d 669, 679 (CADC 2008). That distinction is a facet of the pre-Smith jurispru- dence RFRA incorporates. Bowen v. Roy, 476 U.S. 693 (1986), is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court ex- plained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (distinguishing between, on the one hand, “ques- tion[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpreta- tions of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substan- tiality of the burden placed on the challenger. Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ reli- gious objections and the contraceptive coverage require- ment is too attenuated to rank as substantial. The re- Cite as: 573 U. S. ____ (2014) 23 GINSBURG, J., dissenting quirement carries no command that Hobby Lobby or Con- estoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under com- prehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services. Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Cones- toga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physi- cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ- er’s] decision or action.” Grote v. Sebelius, 708 F.3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “sub- stantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo- man’s autonomous choice, informed by the physician she consults. 3 Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage 24 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contra- ception coverage enables women to avoid the health prob- lems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for Ameri- can College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107. That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corpora- tions exclude intrauterine devices (IUDs), devices signifi- cantly more effective, and significantly more expensive than other contraceptive methods. See id., at 105.22 Moreover, the Court’s reasoning appears to permit com- mercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contra- ceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’ ” (in- ternal quotation marks added)). Perhaps the gravity of the interests at stake has led the —————— 22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al., Effectiveness of Long-Acting Re- versible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012). Cite as: 573 U. S. ____ (2014) 25 GINSBURG, J., dissenting Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40.23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Repro- ductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-of- Pocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contracep- tive Procurement Pre- and Post-Benefit Change, 76 Con- traception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled). Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court —————— 23 Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.). 26 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting suggests, Congress would not have created these exclu- sions. See ante, at 39–40. Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U.S. C. §2611(4)(A)(i) (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 1967, 29 U.S. C. §630(b) (originally exempting employers with fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more employees); Amer- icans With Disabilities Act, 42 U.S. C. §12111(5)(A) (ap- plicable to employers with 15 or more employees); Title VII, 42 U.S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp., 546 U.S. 500, 505, n. 2 (2006), the statute now governs employers with 15 or more employees). The ACA’s grandfathering provision, 42 U.S. C. §18011, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive cov- erage or other preventive services provisions). Once speci- fied changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of co- insurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40.24 The percentage of employees in grand- —————— 24 Hobby Lobby’s amicus National Religious Broadcasters similarly Cite as: 573 U. S. ____ (2014) 27 GINSBURG, J., dissenting fathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradu- ally transitioning employers into mandatory coverage.” Gilardi, 733 F.3d, at 1241 (Edwards, J., concurring in part and dissenting in part). The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on non- beneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wil­ kinson, 544 U.S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contra- ceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U.S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”). 4 After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing —————— states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broad- casters as Amicus Curiae in No. 13–354, p. 28. 28 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employ- ees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See supra, at 7–8, 27.25 Then let the government pay (rather than the employees who do not share their employer’s faith), the Court sug- gests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance poli- cies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logisti- cal and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. More- over, Title X of the Public Health Service Act, 42 U.S. C. §300 et seq., “is the nation’s only dedicated source of federal —————— 25 As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause. 544 U.S., at 720–722. “[W]e are a cosmopolitan nation made up of people of almost every conceiva- ble religious preference,” Braunfeld, 366 U.S., at 606, a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the com- mon good.” United States v. Lee, 455 U.S. 252, 259 (1982). Cite as: 573 U. S. ____ (2014) 29 GINSBURG, J., dissenting funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of . . . insured individuals.” Id., at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga de- scribe as a less restrictive alternative. See supra, at 6. And where is the stopping point to the “let the govern- ment pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 (1985), or according women equal pay for sub- stantially similar work, see Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (CA4 1990)? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” gen- erally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See supra, at 14–17. Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organiza- —————— 26 Cf. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)). 30 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argu- ment whether the Court-proposed alternative was ac- ceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87. Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the exist- ing employer-based system of health insurance, Conesto- ga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit. In sum, in view of what Congress sought to accomplish, —————— 27 On brief, Hobby Lobby and Conestoga barely addressed the exten- sion solution, which would bracket commercial enterprises with non- profit religion-based organizations for religious accommodations pur- poses. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27, 2013), injunction pending appeal granted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” United States v. Wilgus, 638 F.3d 1274, 1289 (CA10 2011), especially where the alternative on which the Court seizes was not pressed by any challenger. Cite as: 573 U. S. ____ (2014) 31 GINSBURG, J., dissenting i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the prof- fered alternatives would satisfactorily serve the compel- ling interests to which Congress responded. IV Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455 U.S. 252 (1982). Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest in providing a “nationwide . . . comprehensive insurance system with a variety of benefits available to all partici- pants, with costs shared by employers and employees”).28 The Government urges that Lee should control the chal- lenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U.S., at 259. But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own con- duct as a matter of conscience and faith are not to be —————— 28 Asa sole proprietor, Lee was subject to personal liability for violat- ing the law of general application he opposed. His claim to a religion- based exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability. 32 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage in- volved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contra- ceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so. Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as com- mercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. —————— 29 Congress amended the Social Security Act in response to Lee. The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obliga- tion to pay Social Security taxes only for employees who are co- religionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U.S. C. §3127(a)(2), (b)(1). Thus, employers with sincere religious beliefs have no right to a religion- based exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here. 30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 299 (1985) (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”). Cite as: 573 U. S. ____ (2014) 33 GINSBURG, J., dissenting 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U.S. 400 (1968); In re Minnesota ex rel. McClure, 370 N.W.2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for- profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U.S. 1015 (1986); Elane Photog­ raphy, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P.3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian 34 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision. The Court, however, sees nothing to worry about. To- day’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Wom- en’s Health Amendment. There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative mer- its of differing religious claims,” Lee, 455 U.S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approv- ing some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, —————— 31 Religious objections to immunization programs are not hypothet- ical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccina- tions Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf. Cite as: 573 U. S. ____ (2014) 35 GINSBURG, J., dissenting has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F.3d 723, 730 (CA9 2010) (O’Scannlain, J., con- curring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organiza- tions formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Klein- feld, J., concurring). * * * For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit. Cite as: 573 U. S. ____ (2014) 1 BREYER and KAGAN, JJ., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–354 and 13–356 _________________ SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AND CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt- outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a 2 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1 The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommoda- tions so extreme, for our decisions leave no doubt on that score. See infra, –8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 19 (RFRA), 42 U.S. C. et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommo- dation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent. I “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1992). Congress acted on that understand- —————— 1 TheCourt insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommoda- tion, currently limited to religious nonprofit organizations, to encom- pass commercial enterprises. See ante, at 3–4. With that accommoda- tion extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA”). Cite as: 573 U. S. (2014) 3 GINSBURG, J., dissenting ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases. A The Affordable Care Act (ACA), in its initial form, speci- fied three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independ- ent panel of experts. The scheme had a large gap, how- ever; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (state- ment of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health. Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost —————— 2 See 42 U.S. C. (group health plans must pro- vide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”). 4 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting barriers operated to block many women from obtaining needed care at all. See, e.g., (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); (“co- payments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the spon- sors comprehended, would yield important public health gains. See, e.g., (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] This ex- panded access will reduce unintended pregnancies.”). As altered by the Women’s Health Amendment’s pas- sage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preven- tive care and screenings as provided for in comprehen- sive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U.S. C. Thus charged, the HRSA devel- oped recommendations in consultation with the Institute of Medicine (IOM). See –8726 (2012).3 The IOM convened a group of independent experts, includ- ing “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven- —————— 3 The IOM is an arm of the National Academy of Sciences, an organi- zation Congress established “for the explicit purpose of furnishing advice to the Government.” Public Cite as: 573 U. S. (2014) 5 GINSBURG, J., dissenting tive coverage should include the “full range” of FDA- approved contraceptive methods. See also 2–110. In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congres- sional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving medical tests and treatments and to filling prescriptions for themselves and their families.”); at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); 3 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”). In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 Thereafter, HHS, the Depart- ment of Labor, and the Department of Treasury promul- gated regulations requiring group health plans to include coverage of the contraceptive services recommended in the —————— 4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also –8726 (2012). 6 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulations as the contraceptive coverage requirement. B While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny cov- erage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” at S1127 (Feb. 29, 2012). Re- jecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers. II Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of In Smith, two members of the Native American Church were dis- —————— 5 (a)(1)(iv) ; – 3(a)(1)(iv) (Labor); –3(a)(1)(iv) (Treasury). 6 Separating moral convictions from religious beliefs would be of ques- tionable legitimacy. See 357–358 (1970) (Harlan, J., concurring in result). 7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga. Cite as: 573 U. S. (2014) 7 GINSBURG, J., dissenting missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential ele- ment of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion is not the object of [governmental regulation] but merely the inci- dental effect of a generally applicable and otherwise valid provision.” ; see –879 (“an individ- ual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive cover- age requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental. Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Cones- toga seek. Accommodations to religious beliefs or obser- vances, the Court has clarified, must not significantly impinge on the interests of third parties.8 —————— 8 See (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommoda- tion would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” ; see (“an accommodation must be measured so that it does not override other significant interests”). A 8 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, (2004) (“We are unaware of any decision in which [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 2, III A Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling govern- mental interest.” 42 U.S. C. –1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 424 RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling —————— balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommoda- tion to religious beliefs and practices. Cite as: 573 U. S. (2014) 9 GINSBURG, J., dissenting interest test as set forth in v. Verner, 374 U.S. 398 (1963) and and to guarantee its application in all cases where free exercise of religion is substantially burdened.” (b)(1).9 See also (a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental in- terests.”); ante, at 48 (agreeing that the pre-Smith compel- ling interest test is “workable” and “strike[s] sensible balances”). The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (19) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (19) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (19) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] new rights for any religious prac- tice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 19 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (O’Connor, J., concurring in judgment). 10 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives). B Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, n. 3, 7, 17, 25–27. To support its conception of RFRA as a meas- ure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. et seq., which altered RFRA’s defini- tion of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of reli- gion under the First Amendment to the Constitution.” –2(4) (1994 ed.). See ante, –7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” –2(4) (2012 ed.) (cross- referencing –5). That definitional change, accord- ing to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s altera- tion clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to in- quire whether a government action substantially burdens a religious exercise. See 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep. Cite as: 573 U. S. (2014) 11 GINSBURG, J., dissenting No. 106–219, p. 30 (1999). See also 1211 (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, (“The [RLUIPA] amendments did not alter RFRA’s basic prohi- bition that the ‘[g]overnment shall not substantially bur- den a person’s exercise of religion.’ ”).10 Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling inter- est. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 ). See also ante, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same). The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “com- pelling interest test” a “least restrictive means” require- ment. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in ], the Government must demon- —————— 10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U.S. C. –3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of reli- gion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety. 12 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Sen- ate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (19) (statement of Prof. Douglas Laycock). Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s pre- Smith jurisprudence. See (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Reli- gious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).11 C With RFRA’s restorative purpose in mind, I turn to the —————— 11 The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, Cite as: 573 U. S. (2014) 13 GINSBURG, J., dissenting Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consid- eration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corpo- rations rank among “person[s]” who “exercise reli- gion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their reli- gious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest? Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis. 1 RFRA’s compelling interest test, as noted, see at 8, applies to government actions that “substantially bur- den a person’s exercise of religion.” 42 U.S. C. – 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dic- tionary Act, 1 U.S. C. which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U.S. C. –1(a) (emphasis added). See also §–2(4), 2000cc–5(7)(a).12 Whether —————— 12 As earlier explained, see –11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious as- sembl[ies] or institution[s].” 42 U.S. C. (a)(1). But cf. ante, at 26. That law applies to land-use regulation. (a)(1). To permit commercial enterprises to challenge zoning and other land-use regula- 14 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting a corporation qualifies as a “person” capable of exercis- ing religion is an inquiry one cannot answer without refer- ence to the “full body” of pre-Smith “free-exercise caselaw.” There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations. Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex- emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, (opin- ion concurring in part and dissenting in part). The First Amendment’s free exercise protections, the —————— tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26. 13 The Court regards as “suggest[ing] that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litiga- tion. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because 366 U.S. 599 which upheld a similar closing law, was fatal to their claim on the Cite as: 573 U. S. (2014) 15 GINSBURG, J., dissenting Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many indi- viduals, religious activity derives meaning in large meas- ure from participation in a larger religious community,” and “furtherance of the autonomy of religious organiza- tions often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day (Brennan, J., concurring in judgment). The Court’s “spe- cial solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, U. S. (2012) (slip op., at 14), how- ever, is just that. No such solicitude is traditional for com- mercial organizations.15 Indeed, until today, religious —————— 14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, U. S. (2012); ; Church of Lukumi Babalu Aye, (19); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 4 U.S. 378 15 Typically, Congress has accorded to organizations religious in char- acter religion-based exemptions from statutes of general application. E.g., 42 U.S. C. (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of its activities”); 42 U.S. C. It can scarcely be maintained that RFRA enlarges these exemp- tions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28. The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U.S. C. and 238n(a), and infers from them that “Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by differs significantly from the protection provided by 16 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting exemptions had never been extended to any entity operat- ing in “the commercial, profit-making world.” Amos, 483 U.S., at 337.16 The reason why is hardly obscure. Religious organiza- tions exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the —————— RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, may be able to invoke []”); cf. S. 137, 113th Cong., 1st Sess. (as introduced) (Abortion Non-Discrimination Act of which would amend the definition of “health care entity” in to include “hospital[s],” “health insurance plan[s],” and other health care facilities). These provisions are reveal- ing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among those eligible for a religious accommodation. Moreover, the exemption codified in was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescis- sions and Appropriations Act of 1996, –245. If, as the Court believes, RFRA opened all statutory schemes to religion- based challenges by for-profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort. 16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith.” Ante, at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-and- blood individuals who plainly count as persons sheltered by the First Amendment, see United ), and a fortiori, RFRA. Cite as: 573 U. S. (2014) 17 GINSBURG, J., dissenting work force of for-profit corporations. See 42 U.S. C. 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight. Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Con- gress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See 468 (Congress does not “hide elephants in mouse- holes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for- profit corporations. See Hobby Lobby Stores, (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corpora- tions”). See also Senators Brief 10–13 (none of the —————— 17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without refer- ence to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health haz- ards employees who do not subscribe to their employers’ religious beliefs. 18 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations). The Court notes that for-profit corporations may sup- port charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concur- ring) (criticizing the Government for “distinguishing be- tween different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiasti- cal and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non- —————— 18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. Ante, See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accom- modations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”). Cite as: 573 U. S. (2014) 19 GINSBURG, J., dissenting profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a commu- nity of believers].” (Edwards, J., concurring in part and dissenting in part) (emphasis deleted). Citing the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obliga- tions. One might ask why the separation should hold only when it serves the interest of those who control the corpo- ration. In any event, is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the The Court’s determination that RFRA extends to for- profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA —————— 19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demon- strates, such claims are indeed pursued by large corporations, employ- ing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is 20 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith. 2 Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substan- tially burden[s] [their] exercise of religion.” 42 U.S. C. –1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See —————— hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve- nues and employs some 140,000 persons. See Forbes, America’s Larg- est Private Companies available at http://www.forbes.com/ largest-private-companies/. Nor does the Court offer any instruction on how to resolve the dis- putes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations (section entitled “Selecting the state of incorporation”); (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solu- tions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substan- tial,” ante, at 36? Cite as: 573 U. S. (2014) 21 GINSBURG, J., dissenting 139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Govern- ment to justify every action that has some effect on reli- gious exercise.” The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U.S. C. §–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, dis- tinguishes between “factual allegations that [plaintiffs’] —————— 20 The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantial- ity of the alleged burden. 21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See at 7–8; infra, at 27. 22 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, That distinction is a facet of the pre-Smith jurispru- dence RFRA incorporates. 476 U.S. 6 is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court ex- plained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” at 700–701, n. 6. See also 0 U.S. 680, (distinguishing between, on the one hand, “ques- tion[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpreta- tions of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substan- tiality of the burden placed on the challenger. Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ reli- gious objections and the contraceptive coverage require- ment is too attenuated to rank as substantial. The re- Cite as: 573 U. S. (2014) 23 GINSBURG, J., dissenting quirement carries no command that Hobby Lobby or Con- estoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under com- prehensive health plans. Those plans, in order to comply with the ACA, see at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services. Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Cones- toga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physi- cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ- er’s] decision or action.” 865 (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “sub- stantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo- man’s autonomous choice, informed by the physician she consults. 3 Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage 24 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contra- ception coverage enables women to avoid the health prob- lems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for Ameri- can College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; ; IOM Report 107. That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corpora- tions exclude intrauterine devices (IUDs), devices signifi- cantly more effective, and significantly more expensive than other contraceptive methods. See 5.22 Moreover, the Court’s reasoning appears to permit com- mercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contra- ceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument would apply just as well if the employer said ‘no contraceptives’ ” (in- ternal quotation marks added)). Perhaps the gravity of the interests at stake has led the —————— 22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 See also Winner et al., Effectiveness of Long-Acting Re- versible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012). Cite as: 573 U. S. (2014) 25 GINSBURG, J., dissenting Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante,23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Repro- ductive Health 94, 98 ; and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-of- Pocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 See also at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contracep- tive Procurement Pre- and Post-Benefit Change, 76 Con- traception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled). Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court —————— 23 Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.). 26 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting suggests, Congress would not have created these exclu- sions. See ante, at 39–40. Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 19, 29 U.S. C. (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 29 U.S. C. (originally exempting employers with fewer than 50 employees, the statute now governs employers with 20 or more employees); Amer- icans With Disabilities Act, 42 U.S. C. (ap- plicable to employers with 15 or more employees); Title VII, 42 U.S. C. the statute now governs employers with 15 or more employees). The ACA’s grandfathering provision, 42 U.S. C. allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive cov- erage or other preventive services provisions). Once speci- fied changes are made, grandfathered status ceases. See (g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of co- insurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.”24 The percentage of employees in grand- —————— 24 Hobby Lobby’s amicus National Religious Broadcasters similarly Cite as: 573 U. S. (2014) 27 GINSBURG, J., dissenting fathered plans is steadily declining, having dropped from 56% in to 48% in 2012 to 36% in Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradu- ally transitioning employers into mandatory coverage.” (Edwards, J., concurring in part and dissenting in part). The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on non- beneficiaries.” Ante, at 42, n. 37 ; emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contra- ceptive coverage requirement was designed to protect. Cf. at 7–8; (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”). 4 After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing —————— states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broad- casters as Amicus Curiae in No. 13–354, p. 28. 28 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employ- ees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See at 7–8, 27.25 Then let the government pay (rather than the employees who do not share their employer’s faith), the Court sug- gests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing contraceptives to any women who are unable to obtain them under their health-insurance poli- cies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logisti- cal and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. More- over, Title X of the Public Health Service Act, 42 U.S. C. et seq., “is the nation’s only dedicated source of federal —————— 25 As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment 544 U.S., at –722. “[W]e are a cosmopolitan nation made up of people of almost every conceiva- ble religious preference,” a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the com- mon good.” United Cite as: 573 U. S. (2014) 29 GINSBURG, J., dissenting funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of insured individuals.” at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga de- scribe as a less restrictive alternative. See And where is the stopping point to the “let the govern- ment pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 or according women equal pay for sub- stantially similar work, see ? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” gen- erally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See at 14–17. Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organiza- —————— 26 Cf. (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)). 30 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argu- ment whether the Court-proposed alternative was ac- ceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87. Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the exist- ing employer-based system of health insurance, Conesto- ga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit. In sum, in view of what Congress sought to accomplish, —————— 27 On brief, Hobby Lobby and Conestoga barely addressed the exten- sion solution, which would bracket commercial enterprises with non- profit religion-based organizations for religious accommodations pur- poses. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the WL 6839900 injunction pending appeal granted, 571 U. S. (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to refute each and every conceivable alternative regulation,” United especially where the alternative on which the Court seizes was not pressed by any challenger. Cite as: 573 U. S. (2014) 31 GINSBURG, J., dissenting i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the prof- fered alternatives would satisfactorily serve the compel- ling interests to which Congress responded. IV Among the pathmarking pre-Smith decisions RFRA preserved is United a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with ’s religious beliefs, the burden was not unconstitutional. at 260–261. See also at 258 (recognizing the important governmental interest in providing a “nationwide comprehensive insurance system with a variety of benefits available to all partici- pants, with costs shared by employers and employees”).28 The Government urges that should control the chal- lenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U.S., at But the Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own con- duct as a matter of conscience and faith are not to be —————— 28 Asa sole proprietor, was subject to personal liability for violat- ing the law of general application he opposed. His claim to a religion- based exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability. 32 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage in- volved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” 29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contra- ceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so. Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as com- mercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. —————— 29 Congress amended the Social Security Act in response to The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obliga- tion to pay Social Security taxes only for employees who are co- religionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U.S. C. (b)(1). Thus, employers with sincere religious beliefs have no right to a religion- based exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here. 30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 299 (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”). Cite as: 573 U. S. (2014) 33 GINSBURG, J., dissenting 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, aff ’d and modified on other grounds, ; In re Minnesota ex rel. McClure, (born-again Christians who owned closely held, for- profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” ), appeal dismissed, ; Elane Photog­ raphy, LLC v. Willock, –NMSC–040, N. M. (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine the plausibility of a religious claim”? Ante, at 37. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian 34 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases would have to be evaluated on its own apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision. The Court, however, sees nothing to worry about. To- day’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Wom- en’s Health Amendment. There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative mer- its of differing religious claims,” n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approv- ing some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, —————— 31 Religious objections to immunization programs are not hypothet- ical. See (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccina- tions Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf. Cite as: 573 U. S. (2014) 35 GINSBURG, J., dissenting has ventured into a minefield, cf. (O’Scannlain, J., con- curring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organiza- tions formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged substantially in the exchange of goods or services for money beyond nominal amounts.” See (Klein- feld, J., concurring). * * * For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit. Cite as: 573 U. S. (2014) 1 BREYER and KAGAN, JJ., dissenting SUPREME COURT OF THE UNITED STATES Nos. 13–354 and 13–356 SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AND CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

Justice Roberts

majority

Jones v. Bock

https://www.courtlistener.com/opinion/145763/jones-v-bock/

https://www.courtlistener.com/api/rest/v3/clusters/145763/

2006-012

In an effort to address the large number of prisoner complaints filed in federal court, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role. I Prisoner litigation continues to "account for an outsized share of filings" in federal district courts. Woodford v. Ngo, 548 U.S. ___, ___, n. 4, 126 S. Ct. 2378 (2006) (slip op., at 12, n. 4). In 2005, nearly 10 percent of all civil cases filed in federal courts nationwide were prisoner complaints challenging prison conditions or claiming civil rights violations.[1] Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002) (PLRA intended to "reduce the quantity and improve the quality of prisoner suits"). To that end, Congress enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of the good. Key among these was the requirement that inmates complaining about prison conditions exhaust prison grievance remedies before initiating a lawsuit. The exhaustion provision of the PLRA states: "No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality *915 of suits that are filed by producing a useful administrative record. Woodford, supra, at ___, 126 S. Ct. 2378 (slip op., at 12). In an attempt to implement the exhaustion requirement, some lower courts have imposed procedural rules that have become the subject of varying levels of disagreement among the federal courts of appeals. The first question presented centers on a conflict over whether exhaustion under the PLRA is a pleading requirement the prisoner must satisfy in his complaint or an affirmative defense the defendant must plead and prove.[2] The Sixth Circuit, adopting the former view, requires prisoners to attach proof of exhaustion—typically copies of the grievances—to their complaints to avoid dismissal. If no written record of the grievance is available, the inmate must plead with specificity how and when he exhausted the grievance procedures. Knuckles El v. Toombs, 215 F.3d 640, 642 (2000). The next issue concerns how courts determine whether a prisoner has properly exhausted administrative remedies—specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim. The Sixth Circuit requires that a prisoner have identified, in the first step of the grievance process, each individual later named in the lawsuit to properly exhaust administrative remedies. Burton v. Jones, 321 F.3d 569, 575 (2003). Other circuits have taken varying approaches to this question, see, e.g., Butler v. Adams, 397 F.3d 1181, 1183 (C.A.9 2005) (proper exhaustion requires use of the administrative process provided by the State; if that process does not require identification of specific persons, neither does the PLRA); Johnson v. Johnson, 385 F.3d 503, 522 (C.A.5 2004) ("[T]he grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit"); Riccardo v. Rausch, 375 F.3d 521, 524 (C.A.7 2004) (exhaustion satisfied if grievance "served its function of alerting the state and inviting corrective action"), none going as far as the Sixth Circuit in requiring in every case that the defendants have been named from the beginning of the grievance process. Finally, the circuits are divided over what the PLRA requires when both exhausted and unexhausted claims are included in a complaint.[3] Some circuits, including *916 the Sixth Circuit, apply a "total exhaustion" rule, under which no part of the suit may proceed if any single claim in the action is not properly exhausted. See, e.g., Jones Bey v. Johnson, 407 F.3d 801, 805 (C.A.6 2005). Among circuits requiring total exhaustion there is further disagreement over what to do if the requirement is not met. Most courts allow the prisoner to amend his complaint to include only exhausted claims, e.g., Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (C.A.8 2003), but the Sixth Circuit denies leave to amend, dismisses the action, and requires that it be filed anew with only unexhausted claims, Baxter v. Rose, 305 F.3d 486, 488 (2002); Jones Bey, supra, at 807. See also McGore v. Wrigglesworth, 114 F.3d 601, 612 (1997). Other circuits reject total exhaustion altogether, instead dismissing only unexhausted claims and considering the rest on the merits. See, e.g., Ortiz v. McBride, 380 F.3d 649, 663 (C.A.2 2004). A Petitioners are inmates in the custody of the Michigan Department of Corrections (MDOC). At the time petitioners filed their grievances, MDOC Policy Directive 03.02.130 (Nov. 1, 2000) set forth the applicable grievance procedures. 1 App. 138-157.[4] The policy directive describes what issues are grievable and contains instructions for filing and processing grievances. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue. Id., at 147. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process, and submit a completed grievance form within five business days of the attempted oral resolution. Id., at 147, 149-150. The Step I grievance form provided by MDOC (a one-page form on which the inmate fills out identifying information and is given space to describe the complaint) advises inmates to be "brief and concise in describing your grievance issue." 2 id., at 1. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent— generally the supervisor of the person being grieved. 1 id., at 150. If the inmate is dissatisfied with the Step I response, he may appeal to Step II by obtaining an appeal form within five business days of the response, and submitting the appeal within five business days of obtaining the form. Id., at 152. The respondent at Step II is designated by the policy, id., at 152-153 (e.g., the regional health administrator for medical care grievances). If still dissatisfied after Step II, the inmate may further appeal to Step III using the same appeal form; the MDOC director is designated as respondent for all Step III appeals. Id., at 154. Lorenzo Jones Petitioner Lorenzo Jones is incarcerated at the MDOC's Saginaw Correctional Facility. In November 2000, while in MDOC's custody, Jones was involved in a vehicle accident and suffered significant injuries to his neck and back. Several months later Jones was given a work assignment he allegedly could not perform in light of his injuries. According to Jones, respondent Paul Morrison—in charge of work assignments at the prison—made the inappropriate assignment, even though he knew of Jones's injuries. When Jones reported to the assignment, he informed the staff member in charge—respondent Michael Opanasenko—that he could not perform *917 the work; Opanasenko allegedly told him to do the work or "`suffer the consequences.'" Id., at 20. Jones performed the required tasks and allegedly aggravated his injuries. After unsuccessfully seeking redress through the MDOC's grievance process, Jones filed a complaint in the Eastern District of Michigan under 42 U.S.C. § 1983 for deliberate indifference to medical needs, retaliation, and harassment. Jones named as defendants, in addition to Morrison and Opanasenko, respondents Barbara Bock (the warden), Valerie Chaplin (a deputy warden), Janet Konkle (a registered nurse), and Ahmad Aldabaugh (a physician). A Magistrate recommended dismissal for failure to state a claim with respect to Bock, Chaplin, Konkle, and Aldabaugh, and the District Court agreed. 1 Ohio App. 41. With respect to Morrison and Opanasenko, however, the Magistrate recommended that the suit proceed, finding that Jones had exhausted his administrative remedies as to those two. Id., at 18-29. The District Court disagreed. In his complaint, Jones provided the dates on which his claims were filed at various steps of the MDOC grievance procedures. Id., at 41. He did not, however, attach copies of the grievance forms or describe the proceedings with specificity. Respondents attached copies of all of Jones's grievances to their own motion to dismiss, but the District Judge ruled that Jones's failure to meet his burden to plead exhaustion in his complaint could not be cured by respondents. Id., at 42. The Sixth Circuit agreed, holding both that Jones failed to comply with the specific pleading requirements applied to PLRA suits, 135 Fed. Appx. 837, 839 (2005) (per curiam) (citing Knuckles El, 215 F.3d, at 642), and that, even if Jones had shown that he exhausted the claims against Morrison and Opanasenko, dismissal was still required under the total exhaustion rule, 135 Fed.Appx., at 839 (citing Jones Bey, 407 F.3d, at 806). Timothy Williams Petitioner Timothy Williams is incarcerated at the MDOC's Adrian Correctional Facility. He suffers from noninvoluting cavernous hemangiomas in his right arm, a medical condition that causes pain, immobility, and disfigurement of the limb, and for which he has undergone several surgeries. An MDOC physician recommended further surgery to provide pain relief, but MDOC's Correctional Medical Services denied the recommendation (and subsequent appeals by the doctor) on the ground that the danger of surgery outweighed the benefits, which it viewed as cosmetic. The MDOC Medical Services Advisory Committee upheld this decision. After Correctional Medical Services indicated that it would take the request under advisement, Williams filed a grievance objecting to the quality of his medical care and seeking authorization for the surgery. He later filed another grievance complaining that he was denied a single-occupancy handicapped cell, allegedly necessary to accommodate his medical condition. After both grievances were denied at all stages, Williams filed a complaint in the Eastern District of Michigan under § 1983, naming as respondents William Overton (former director of MDOC), David Jamrog (the warden), Mary Jo Pass and Paul Klee (assistant deputy wardens), Chad Markwell (corrections officer), Bonnie Peterson (health unit manager), and Dr. George Pramstaller (chief medical officer for MDOC). The District Judge found that Williams had failed to exhaust his administrative remedies with regard to his medical care claim because he had not identified any of the respondents named in his lawsuit during *918 the grievance process.[5] Although Williams's claim concerning the handicapped cell had been properly exhausted, the District Judge—applying the total exhaustion rule—dismissed the entire suit. The Sixth Circuit affirmed. 136 Fed. Appx. 859, 861-863 (2005) (citing Burton, 321 F.3d, at 574, Curry v. Scott, 249 F.3d 493, 504-505 (C.A.6 2001), and Jones Bey, 407 F.3d, at 805). John Walton Petitioner John Walton is incarcerated at the MDOC's Alger Maximum Correctional Facility. After assaulting a guard, he was sanctioned with an indefinite "upper slot" restriction.[6] Several months later, upon learning that other prisoners had been given upper slot restrictions of only three months for the same infraction, he filed a grievance claiming that this disparity was the result of racial discrimination (Walton is black, the two other prisoners he identified in his grievances are white). After the grievance was denied, Walton filed a complaint in the Western District of Michigan under § 1983, claiming race discrimination. He named as respondents Barbara Bouchard (former warden), Ken Gearin, David Bergh, and Ron Bobo (assistant deputy wardens), Catherine Bauman (resident unit manager), and Denise Gerth (assistant resident unit supervisor). The District Judge dismissed the lawsuit because Walton had not named any respondent other than Bobo in his grievance. His claims against the other respondents were thus not properly exhausted, and the court dismissed the entire action under the total exhaustion rule. The Sixth Circuit affirmed, reiterating its requirement that a prisoner must "file a grievance against the person he ultimately seeks to sue," Curry, supra, at 505, and that this requirement can only be satisfied by naming each defendant at Step I of the MDOC grievance process. Because Walton had exhausted prison remedies only as to respondent Bobo, the Sixth Circuit affirmed the District Court's dismissal of the entire action. 136 Fed.Appx. 846, 848-849 (2005). B Jones sought review in a petition for certiorari, arguing that the Sixth Circuit's heightened pleading requirement and total exhaustion rule contravene the clear language of the Federal Rules of Civil Procedure and the PLRA. Williams and Walton filed a joint petition under this Court's Rule 12.4, contending that the rule requiring every defendant to be named during the grievance process is not required by the PLRA, and also challenging the total exhaustion rule. We granted both petitions for certiorari, 547 U.S. ___, 126 S. Ct. 1463, 164 L. Ed. 2d 246 (2006), and consolidated the cases for our review. II There is no question that exhaustion is mandatory under the PLRA and *919 that unexhausted claims cannot be brought in court. Porter, 534 U.S., at 524, 122 S. Ct. 983. What is less clear is whether it falls to the prisoner to plead and demonstrate exhaustion in the complaint, or to the defendant to raise lack of exhaustion as an affirmative defense. The minority rule, adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n. 2, supra. We think petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a "short and plain statement of the claim" in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner's claim; claims covered by the PLRA are typically brought under 42 U.S.C. § 1983, which does not require exhaustion at all, see Patsy v. Board of Regents of Fla., 457 U.S. 496, 516, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982). Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34-36, and nn. 12-13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., Wright v. Universal Maritime Service Corp., 525 U.S. 70, 75, 119 S. Ct. 391, 142 L. Ed. 2d 361 (1998) (referring to "failure to exhaust" as an "affirmative defens[e]"), including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U.S. ___, ___, 126 S. Ct. 1675 (2006) (slip op., at 8) (referring to exhaustion as a "defense"). The PLRA dealt extensively with the subject of exhaustion, see 42 U.S.C. §§ 1997e(a), (c)(2), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense. In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), we unanimously reversed the court of appeals for imposing a heightened pleading standard in § 1983 suits against municipalities. We explained that "[p]erhaps if [the] Rules. . . were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement. . . . But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Id., at 168, 113 S. Ct. 1160. In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that "the Federal Rules do not contain a heightened pleading standard for employment discrimination suits," and a "requirement of greater specificity for particular claims" must be obtained by amending the Federal Rules. Id., at 515, 122 S. Ct. 992 (citing Leatherman). And just last Term, in Hill v. McDonough, 547 U.S. ___, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006), we unanimously rejected a proposal that § 1983 suits challenging a method of execution must identify an acceptable alternative: "Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal *920 courts." Id., at ___, 126 S. Ct. 2096 (slip op., at 8) (citing Swierkiewicz). The Sixth Circuit and other courts requiring prisoners to plead and demonstrate exhaustion in their complaints contend that if the "new regime" mandated by the PLRA for prisoner complaints is to function effectively, prisoner complaints must be treated outside of this typical framework. See Baxter, 305 F.3d, at 489. These courts explain that the PLRA not only imposed a new mandatory exhaustion requirement, but also departed in a fundamental way from the usual procedural ground rules by requiring judicial screening to filter out nonmeritorious claims: Courts are to screen inmate complaints "before docketing, if feasible, or . . . as soon as practicable after docketing," and dismiss the complaint if it is "frivolous, malicious, . . . fails to state a claim upon which relief may be granted[,] or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §§ 1915A(a), (b). All this may take place before any responsive pleading is filed— unlike in the typical civil case, defendants do not have to respond to a complaint covered by the PLRA until required to do so by the court, and waiving the right to reply does not constitute an admission of the allegations in the complaint. See 42 U.S.C. § 1997e(g)(1), (2). According to respondents, these departures from the normal litigation framework of complaint and response mandate a different pleading requirement for prisoner complaints, if the screening is to serve its intended purpose. See, e.g., Baxter, supra, at 489 ("This court's heightened pleading standards for complaints covered by the PLRA are designed to facilitate the Act's screening requirements. . ."); Knuckles El, 215 F.3d, at 642. See also Brief for Respondents 17. We think that the PLRA's screening requirement does not—explicitly or implicitly—justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Before the PLRA, the in forma pauperis provision of § 1915, applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious. 28 U.S.C. § 1915(d) (1994 ed.); see also Neitzke, 490 U.S., at 320, 109 S. Ct. 1827 (concluding that a complaint that fails to state a claim was not frivolous under § 1915(d) and thus could not be dismissed sua sponte). In the PLRA, Congress added failure to state a claim and seeking monetary relief from a defendant immune from such relief as grounds for sua sponte dismissal of in forma pauperis cases, § 1915(e)(2)(B) (2000 ed.), and provided for judicial screening and sua sponte dismissal of prisoner suits on the same four grounds, § 1915A(b); 42 U.S.C. § 1997e(c)(1). Although exhaustion was a "centerpiece" of the PLRA, Woodford, 548 U.S., at ___, 126 S. Ct. 2378 (slip op., at 1-2), failure to exhaust was notably not added in terms to this enumeration. There is thus no reason to suppose that the normal pleading rules have to be altered to facilitate judicial screening of complaints specifically for failure to exhaust. Some courts have found that exhaustion is subsumed under the PLRA's enumerated ground authorizing early dismissal for "fail[ure] to state a claim upon which relief may be granted." 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1). See Baxter, supra, at 489; Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210 (C.A.10 2003); Rivera v. Allin, 144 F.3d 719, 731 (C.A.11 1998). The point is a bit of a red herring. A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject *921 to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract. See Leveto v. Lapina, 258 F.3d 156, 161 (C.A.3 2001) ("[A] complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense ... appears on its face" (internal quotation marks omitted)). See also Lopez-Gonzalez v. Municipality of Comerio, 404 F.3d 548, 551 (C.A.1 2005) (dismissing a complaint barred by the statute of limitations under Rule 12(b)(6)); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (C.A.2 1998) (dismissing a complaint barred by official immunity under Rule 12(b)(6)). See also 5B C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 708-710, 721-729 (3d ed.2004). Determining that Congress meant to include failure to exhaust under the rubric of "failure to state a claim" in the screening provisions of the PLRA would thus not support treating exhaustion as a pleading requirement rather than an affirmative defense. The argument that screening would be more effective if exhaustion had to be shown in the complaint proves too much; the same could be said with respect to any affirmative defense. The rejoinder that the PLRA focused on exhaustion rather than other defenses simply highlights the failure of Congress to include exhaustion in terms among the enumerated grounds justifying dismissal upon early screening. As noted, that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim. It is to say that there is no basis for concluding that Congress implicitly meant to transform exhaustion from an affirmative defense to a pleading requirement by the curiously indirect route of specifying that courts should screen PLRA complaints and dismiss those that fail to state a claim. Respondents point to 42 U.S.C. § 1997e(g) as confirming that the usual pleading rules should not apply to PLRA suits, but we think that provision supports petitioners. It specifies that defendants can waive their right to reply to a prisoner complaint without the usual consequence of being deemed to have admitted the allegations in the complaint. See § 1997e(g)(1) (allowing defendants to waive their response without admitting the allegations "[n]otwithstanding any other law or rule of procedure"). This shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. We understand the reasons behind the decisions of some lower courts to impose a pleading requirement on plaintiffs in this context, but that effort cannot fairly be viewed as an interpretation of the PLRA. "Whatever temptations the statesmanship of policy-making might wisely suggest," the judge's job is to construe the statute—not to make it better. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 533 (1947). The judge "must not read in by way of creation," but instead abide by the "duty of restraint, th[e] humility of function as merely the translator of another's command." Id., at 533-534. See United States v. Goldenberg, 168 U.S. 95, 103, 18 S. Ct. 3, 42 L. Ed. 394 (1897) ("No mere omission ... which it may seem wise to have specifically provided for, justif[ies] any judicial addition to the language of the *922 statute"). Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, 507 U.S., at 168, 113 S. Ct. 1160. III The Sixth Circuit threw out the Williams and Walton suits because those prisoners had not identified in their initial grievances each defendant they later sued. 136 Fed.Appx., at 862-863; id., at 848-849. See Burton, 321 F.3d, at 575.[7] Here again the lower court's procedural rule lacks a textual basis in the PLRA. The PLRA requires exhaustion of "such administrative remedies as are available," 42 U.S.C. § 1997e(a), but nothing in the statute imposes a "name all defendants" requirement along the lines of the Sixth Circuit's judicially created rule. Respondents argue that without such a rule the exhaustion requirement would become a "`useless appendage,'" Brief for Respondents 44 (quoting Woodford, 548 U.S., at ___, 126 S. Ct. 2378 (slip op., at 11)), but the assertion is hyperbole, and the citation of Woodford misplaced. Woodford held that "proper exhaustion" was required under the PLRA, and that this requirement was not satisfied when grievances were dismissed because prisoners had missed deadlines set by the grievance policy. Id., at ___, 126 S. Ct. 2378 (slip op., at 11-13). At the time each of the grievances at issue here was filed, in contrast, the MDOC policy did not contain any provision specifying who must be named in a grievance. MDOC's policy required only that prisoners "be as specific as possible" in their grievances, 1 Ohio App. 148, while at the same time the required forms advised them to "[b]e brief and concise." 2 id., at 1. The MDOC grievance form does not require a prisoner to identify a particular responsible party, and the respondent is not necessarily the allegedly culpable prison official, but rather an administrative official designated in the policy to respond to particular types of grievances at different levels. Supra, at 6. The grievance policy specifically provides that the grievant at Step I "shall have the opportunity to explain the grievance more completely at [an] interview, enabling the Step I respondent to gather any additional information needed to respond to the grievance." 1 Ohio App. 151. Nothing in the MDOC policy itself supports the conclusion that the grievance process was improperly invoked simply because an individual later named as a defendant was not named at the first step of the grievance process. Nor does the PLRA impose such a requirement. In Woodford, we held that to properly exhaust administrative remedies prisoners must "complete the administrative review process in accordance with the applicable procedural rules," 548 U.S., at ___, 126 S. Ct. 2378 (slip op., at 5)—rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, *923 therefore, is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion. As the MDOC's procedures make no mention of naming particular officials, the Sixth Circuit's rule imposing such a prerequisite to proper exhaustion is unwarranted. We have identified the benefits of exhaustion to include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record. See id., at ___, 126 S. Ct. 2378 (slip op., at 6-8); Porter, 534 U.S., at 524-525, 122 S. Ct. 983. The Sixth Circuit rule may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. See Johnson, 385 F.3d, at 522 ("We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation"); see also Brief for American Civil Liberties Union et al. as Amici Curiae 8-9, and n. 6 (collecting grievance procedures and noting that the majority do not require prisoners to identify specific individuals). We do not determine whether the grievances filed by petitioners satisfied the requirement of "proper exhaustion," Woodford, supra, at ___, 126 S. Ct. 2378 (slip op., at 11), but simply conclude that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances. We leave it to the court below in the first instance to determine the sufficiency of the exhaustion in these cases. IV The final issue concerns how courts should address complaints in which the prisoner has failed to exhaust some, but not all, of the claims asserted in the complaint.[8] All agree that no unexhausted claim may be considered. The issue is whether the court should proceed with the exhausted claims, or instead—as the Sixth Circuit has held—dismiss the entire action if any one claim is not properly exhausted. See Jones Bey, 407 F.3d, at 807.[9] Here the Sixth Circuit can point to language in the PLRA in support of its rule. Section 1997e(a) provides that "[n]o action shall be brought" unless administrative procedures are exhausted. Respondents argue that if Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, the word *924 "claim" rather than "action" would have been used in this provision. This statutory phrasing—"no action shall be brought"—is boilerplate language. There are many instances in the Federal Code where similar language is used, but such language has not been thought to lead to the dismissal of an entire action if a single claim fails to meet the pertinent standards. Statutes of limitations, for example, are often introduced by a variant of the phrase "no action shall be brought," see, e.g., Beach v. Ocwen Fed. Bank, 523 U.S. 410, 416, 118 S. Ct. 1408, 140 L. Ed. 2d 566 (1998); 18 U.S.C. § 1030(g) (2000 ed., Supp. IV), but we have never heard of an entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a rule would serve. The same is true with respect to other uses of the "no action shall be brought" phrasing. See, e.g., Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F.3d 461, 471 (C.A.3 1997) (dismissing only claims that fail to comply with the citizen suit notification requirement of 16 U.S.C. § 1540(g)(2), which states that "[n]o action may be commenced" until an agency has declined to act after being given written notice). More generally, statutory references to an "action" have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the "action" may proceed. See, e.g., Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 560-563, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (District Court had jurisdiction over a "civil action" under 28 U.S.C. § 1367(a), even if it might not have jurisdiction over each separate claim comprising the action); Chicago v. International College of Surgeons, 522 U.S. 156, 166, 118 S. Ct. 523, 139 L. Ed. 2d 525 (1997) (District Court had jurisdiction over removed "civil action" even if every claim did not satisfy jurisdictional prerequisites). As a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. "[O]nly the bad claims are dismissed; the complaint as a whole is not. If Congress meant to depart from this norm, we would expect some indication of that, and we find none." Robinson v. Page, 170 F.3d 747, 748-749 (C.A.7 1999) (considering § 1997e(e)). Respondents note an exception to this general rule, the total exhaustion rule in habeas corpus. In Rose v. Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982), we held that "mixed" habeas petitions—containing both exhausted and unexhausted claims—cannot be adjudicated. This total exhaustion rule applied in habeas was initially derived from considerations of "comity and federalism," not any statutory command. Rhines v. Weber, 544 U.S. 269, 273, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005); id., at 274, 125 S. Ct. 1528 (noting that Congress "preserved Lundy's total exhaustion requirement" in 28 U.S.C. § 2254(b)(1)(A)). Separate claims in a single habeas petition generally seek the same relief from custody, and success on one is often as good as success on another. In such a case it makes sense to require exhaustion of all claims in state court before allowing the federal action to proceed. A typical PLRA suit with multiple claims, on the other hand, may combine a wide variety of discrete complaints, about interactions with guards, prison conditions, generally applicable rules, and so on, seeking different relief on each claim. There is no reason failure to exhaust on one necessarily affects any other. In any event, even if the habeas total exhaustion rule is pertinent, it does not in fact depart from the usual practice—as we recently held, a *925 court presented with a mixed habeas petition "should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims ...." Rhines, supra, at 278, 125 S. Ct. 1528. This is the opposite of the rule the Sixth Circuit adopted, and precisely the rule that respondents argue against. Respondents' reading of 42 U.S.C. § 1997e(a) to contain a total exhaustion rule is bolstered by the fact that other sections of the PLRA distinguish between actions and claims. Section 1997e(c)(1), for example, provides that a court shall dismiss an action for one of four enumerated deficiencies, while § 1997e(c)(2) allows a court to dismiss a claim for one of these reasons without first determining whether the claim is exhausted. Similarly, 28 U.S.C. § 1915A(b) directs district courts to dismiss "the complaint, or any portion of the complaint" before docketing under certain circumstances. This demonstrates that Congress knew how to differentiate between the entire action and particular claims when it wanted to, and suggests that its use of "action" rather than "claim" in 42 U.S.C. § 1997e(a) should be given effect. But the interpretation respondents advocate creates its own inconsistencies. Section 1997e(e) contains similar language, "[n]o ... action may be brought ... for mental or emotional injury suffered while in custody without a prior showing of physical injury," yet respondents cite no case interpreting this provision to require dismissal of the entire lawsuit if only one claim does not comply, and again we see little reason for such an approach. Accord, Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374, 376-377 (C.A.7 2000) (dismissing only the portions of the complaint barred by § 1997e(e)); see also Williams v. Ollis, 230 F.3d 1361 (C.A.6 2000) (unpublished table decision) (same). Interpreting the phrase "no action shall be brought" to require dismissal of the entire case under § 1997e(a) but not § 1997e(e) would contravene our normal rules of statutory construction. National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 501-502, 118 S. Ct. 927, 140 L. Ed. 2d 1 (1998). In pressing the total exhaustion argument, respondents also marshal the policy and purpose underlying the PLRA—this time in a supporting rather than lead role. The invigorated exhaustion requirement is a "centerpiece" of the statute, Woodford, 548 U.S., at ___, 126 S. Ct. 2378 (slip op., at 1-2), and if the exhaustion requirement of § 1997e(a) is not effectuated by a total exhaustion rule, they argue, inmates will have little incentive to ensure that they have exhausted all available administrative remedies before proceeding to court. The PLRA mandated early judicial screening to reduce the burden of prisoner litigation on the courts; a total exhaustion rule allows courts promptly to dismiss an action upon identifying an unexhausted claim. The alternative approach turns judges into editors of prisoner complaints, rather than creating an incentive for prisoners to exhaust properly. See Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (C.A.10 2004). We are not persuaded by these policy arguments. In fact, the effect of a total exhaustion rule could be that inmates will file various claims in separate suits, to avoid the possibility of an unexhausted claim tainting the others. That would certainly not comport with the purpose of the PLRA to reduce the quantity of inmate suits. Additionally, district judges who delve into a prisoner complaint only to realize it contains an unexhausted claim, requiring dismissal of the entire complaint under the total exhaustion rule, will often have to begin the process all over again *926 when the prisoner refiles. In light of typically short prison grievance time limits, prisoners' refiled complaints will often be identical to what the district court would have considered had it simply dismissed unexhausted claims as it encountered them and proceeded with the exhausted ones. Perhaps filing fees and concerns about the applicability of the "three strikes" rule, 28 U.S.C. § 1915(g), would mitigate these effects, but the debate about consequences is close enough that there is no clear reason to depart from the more typical claim-by-claim approach. * * * We are not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystacks. We once again reiterate, however—as we did unanimously in Leatherman, Swierkiewicz, and Hill—that adopting different and more onerous pleading rules to deal with particular categories of cases should be done through established rulemaking procedures, and not on a case-by-case basis by the courts. The judgments of the United States Court of Appeals for the Sixth Circuit are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.

In an effort to address the large number of prisoner complaints filed in federal court, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), -71, as amended, 4 U.S.C. e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 8 U.S.C. 1915A; 4 U.S.C. e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural s designed to implement this exhaustion requirement and facilitate early judicial screening. These s require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such s. We granted certiorari to resolve the conflict and now conclude that these s are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role. I Prisoner litigation continues to "account for an outsized share of filings" in federal district courts. (slip op., n. 4). In nearly 10 percent of all civil cases filed in federal courts nationwide were prisoner complaints challenging prison conditions or claiming civil rights violations.[1] Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit. See Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See To that end, Congress enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of the good. Key among these was the requirement that inmates complaining about prison conditions exhaust prison grievance remedies before initiating a lawsuit. The exhaustion provision of the PLRA states: "No action shall be brought with respect to prison conditions under [4 U.S.C. 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 4 U.S.C. e(a). Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality *915 of suits that are filed by producing a useful administrative record. at (slip op., ). In an attempt to implement the exhaustion requirement, some lower courts have imposed procedural s that have become the subject of varying levels of disagreement among the federal courts of appeals. The first question presented centers on a conflict over whether exhaustion under the PLRA is a pleading requirement the prisoner must satisfy in his complaint or an affirmative defense the defendant must plead and prove.[] The Sixth Circuit, adopting the former view, requires prisoners to attach proof of exhaustion—typically copies of the grievances—to their complaints to avoid dismissal. If no written record of the grievance is available, the inmate must plead with specificity how and when he exhausted the grievance procedures. Knuckles The next issue concerns how courts determine whether a prisoner has properly exhausted administrative remedies—specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim. The Sixth Circuit requires that a prisoner have identified, in the first step of the grievance process, each individual later named in the lawsuit to properly exhaust administrative remedies. Other circuits have taken varying approaches to this question, see, e.g., ; ; none going as far as the Sixth Circuit in requiring in every case that the defendants have been named from the beginning of the grievance process. Finally, the circuits are divided over what the PLRA requires when both exhausted and unexhausted claims are included in a complaint.[3] Some circuits, including *916 the Sixth Circuit, apply a "total exhaustion" under which no part of the suit may proceed if any single claim in the action is not properly exhausted. See, e.g., Jones Among circuits requiring total exhaustion there is further disagreement over what to do if the requirement is not met. Most courts allow the prisoner to amend his complaint to include only exhausted claims, e.g., but the Sixth Circuit denies leave to amend, dismisses the action, and requires that it be filed anew with only unexhausted claims, ; Jones See also Other circuits reject total exhaustion altogether, instead dismissing only unexhausted claims and considering the rest on the merits. See, e.g., A Petitioners are inmates in the custody of the Michigan Department of Corrections (MDOC). At the time petitioners filed their grievances, MDOC Policy Directive 03.0.130 set forth the applicable grievance procedures. -157.[4] The policy directive describes what issues are grievable and contains instructions for filing and processing grievances. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process, and submit a completed grievance form within five business days of the attempted oral resolution. 149-150. The Step I grievance form provided by MDOC (a one-page form on which the inmate fills out identifying information and is given space to describe the complaint) advises inmates to be "brief and concise in describing your grievance issue." The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent— generally the supervisor of the person being grieved. 1 50. If the inmate is dissatisfied with the Step I response, he may appeal to Step II by obtaining an appeal form within five business days of the response, and submitting the appeal within five business days of obtaining the form. 5. The respondent at Step II is designated by the policy, 5-153 If still dissatisfied after Step II, the inmate may further appeal to Step III using the same appeal form; the MDOC director is designated as respondent for all Step III appeals. 54. Lorenzo Jones Petitioner Lorenzo Jones is incarcerated at the MDOC's Saginaw Correctional Facility. In November while in MDOC's custody, Jones was involved in a vehicle accident and suffered significant injuries to his neck and back. Several months later Jones was given a work assignment he allegedly could not perform in light of his injuries. According to Jones, respondent Paul Morrison—in charge of work assignments at the prison—made the inappropriate assignment, even though he knew of Jones's injuries. When Jones reported to the assignment, he informed the staff member in charge—respondent Michael Opanasenko—that he could not perform *917 the work; Opanasenko allegedly told him to do the work or "`suffer the consequences.'" Jones performed the required tasks and allegedly aggravated his injuries. After unsuccessfully seeking redress through the MDOC's grievance process, Jones filed a complaint in the Eastern District of Michigan under 4 U.S.C. 1983 for deliberate indifference to medical needs, retaliation, and harassment. Jones named as defendants, in addition to Morrison and Opanasenko, respondents Barbara Bock (the warden), Valerie Chaplin (a deputy warden), Janet Konkle (a registered nurse), and Ahmad Aldabaugh (a physician). A Magistrate recommended dismissal for failure to state a claim with respect to Bock, Chaplin, Konkle, and Aldabaugh, and the District Court agreed. With respect to Morrison and Opanasenko, however, the Magistrate recommended that the suit proceed, finding that Jones had exhausted his administrative remedies as to those two. 8-9. The District Court disagreed. In his complaint, Jones provided the dates on which his claims were filed at various steps of the MDOC grievance procedures. He did not, however, attach copies of the grievance forms or describe the proceedings with specificity. Respondents attached copies of all of Jones's grievances to their own motion to dismiss, but the District Judge d that Jones's failure to meet his burden to plead exhaustion in his complaint could not be cured by respondents. The Sixth Circuit agreed, holding both that Jones failed to comply with the specific pleading requirements applied to PLRA suits, (citing Knuckles 15 F.3d, at ), and that, even if Jones had shown that he exhausted the claims against Morrison and Opanasenko, dismissal was still required under the total exhaustion 135 Fed.Appx., at (citing Jones ). Timothy Williams Petitioner Timothy Williams is incarcerated at the MDOC's Adrian Correctional Facility. He suffers from noninvoluting cavernous hemangiomas in his right arm, a medical condition that causes pain, immobility, and disfigurement of the limb, and for which he has undergone several surgeries. An MDOC physician recommended further surgery to provide pain relief, but MDOC's Correctional Medical Services denied the recommendation (and subsequent appeals by the doctor) on the ground that the danger of surgery outweighed the benefits, which it viewed as cosmetic. The MDOC Medical Services Advisory Committee upheld this decision. After Correctional Medical Services indicated that it would take the request under advisement, Williams filed a grievance objecting to the quality of his medical care and seeking authorization for the surgery. He later filed another grievance complaining that he was denied a single-occupancy handicapped cell, allegedly necessary to accommodate his medical condition. After both grievances were denied at all stages, Williams filed a complaint in the Eastern District of Michigan under 1983, naming as respondents William Overton (former director of MDOC), David Jamrog (the warden), Mary Jo Pass and Paul Klee (assistant deputy wardens), Chad Markwell (corrections officer), Bonnie Peterson (health unit manager), and Dr. George Pramstaller (chief medical officer for MDOC). The District Judge found that Williams had failed to exhaust his administrative remedies with regard to his medical care claim because he had not identified any of the respondents named in his lawsuit during *918 the grievance process.[5] Although Williams's claim concerning the handicapped cell had been properly exhausted, the District Judge—applying the total exhaustion —dismissed the entire suit. The Sixth Circuit affirmed. and Jones 407 F.3d, at ). John Walton Petitioner John Walton is incarcerated at the MDOC's Alger Maximum Correctional Facility. After assaulting a guard, he was sanctioned with an indefinite "upper slot" restriction.[6] Several months later, upon learning that other prisoners had been given upper slot restrictions of only three months for the same infraction, he filed a grievance claiming that this disparity was the result of racial discrimination (Walton is black, the two other prisoners he identified in his grievances are white). After the grievance was denied, Walton filed a complaint in the Western District of Michigan under 1983, claiming race discrimination. He named as respondents Barbara Bouchard (former warden), Ken Gearin, David Bergh, and Ron Bobo (assistant deputy wardens), Catherine Bauman (resident unit manager), and Denise Gerth (assistant resident unit supervisor). The District Judge dismissed the lawsuit because Walton had not named any respondent other than Bobo in his grievance. His claims against the other respondents were thus not properly exhausted, and the court dismissed the entire action under the total exhaustion The Sixth Circuit affirmed, reiterating its requirement that a prisoner must "file a grievance against the person he ultimately seeks to sue," and that this requirement can only be satisfied by naming each defendant at Step I of the MDOC grievance process. Because Walton had exhausted prison remedies only as to respondent Bobo, the Sixth Circuit affirmed the District Court's dismissal of the entire action. B Jones sought review in a petition for certiorari, arguing that the Sixth Circuit's heightened pleading requirement and total exhaustion contravene the clear language of the Federal Rules of Civil Procedure and the PLRA. Williams and Walton filed a joint petition under this Court's Rule 1.4, contending that the requiring every defendant to be named during the grievance process is not required by the PLRA, and also challenging the total exhaustion We granted both petitions for certiorari, 547 U.S. and consolidated the cases for our review. II There is no question that exhaustion is mandatory under the PLRA and *919 that unexhausted claims cannot be brought in court. 534 U.S., at What is less clear is whether it falls to the prisoner to plead and demonstrate exhaustion in the complaint, or to the defendant to raise lack of exhaustion as an affirmative defense. The minority adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n. We think petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a "short and plain statement of the claim" in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner's claim; claims covered by the PLRA are typically brought under 4 U.S.C. 1983, which does not require exhaustion at all, see 10 S. Ct. 557, 73 L. Ed. d 17 (198). Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34-36, and nn. 1-13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., 55 U.S. 70, 14 L. Ed. d 361 including in the similar statutory scheme governing habeas corpus, 16 S. Ct. 16 (slip op., at 8) (referring to exhaustion as a "defense"). The PLRA dealt extensively with the subject of exhaustion, see 4 U.S.C. e(a), (c)(), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense. In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in 1 L. Ed. d 517 we unanimously reversed the court of appeals for imposing a heightened pleading standard in 1983 suits against municipalities. We explained that "[p]erhaps if [the] Rules. were rewritten today, claims against municipalities under 1983 might be subjected to the added specificity requirement. But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." 68, In 1 S. Ct. 99, 15 L. Ed. d 1 we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that "the Federal Rules do not contain a heightened pleading standard for employment discrimination suits," and a "requirement of greater specificity for particular claims" must be obtained by amending the Federal Rules. 1 S. Ct. 99 (citing Leatherman). And just last Term, in 16 S. Ct. 096, 165 L. Ed. d 44 we unanimously rejected a proposal that 1983 suits challenging a method of execution must identify an acceptable alternative: "Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general through case-by-case determinations of the federal *90 courts." at 16 S. Ct. 096 (slip op., at 8) (citing Swierkiewicz). The Sixth Circuit and other courts requiring prisoners to plead and demonstrate exhaustion in their complaints contend that if the "new regime" mandated by the PLRA for prisoner complaints is to function effectively, prisoner complaints must be treated outside of this typical framework. See These courts explain that the PLRA not only imposed a new mandatory exhaustion requirement, but also departed in a fundamental way from the usual procedural ground s by requiring judicial screening to filter out nonmeritorious claims: Courts are to screen inmate complaints "before docketing, if feasible, or as soon as practicable after docketing," and dismiss the complaint if it is "frivolous, malicious, fails to state a claim upon which relief may be granted[,] or seeks monetary relief from a defendant who is immune from such relief." 8 U.S.C. 1915A(a), (b). All this may take place before any responsive pleading is filed— unlike in the typical civil case, defendants do not have to respond to a complaint covered by the PLRA until required to do so by the court, and waiving the right to reply does not constitute an admission of the allegations in the complaint. See 4 U.S.C. e(g)(1), (). According to respondents, these departures from the normal litigation framework of complaint and response mandate a different pleading requirement for prisoner complaints, if the screening is to serve its intended purpose. See, e.g., ; Knuckles 15 F.3d, at See also Brief for Respondents 17. We think that the PLRA's screening requirement does not—explicitly or implicitly—justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Before the PLRA, the in forma pauperis provision of 1915, applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious. 8 U.S.C. 1915(d) (1994 ed.); see also 490 U.S., at 30, (concluding that a complaint that fails to state a claim was not frivolous under 1915(d) and thus could not be dismissed sua sponte). In the PLRA, Congress added failure to state a claim and seeking monetary relief from a defendant immune from such relief as grounds for sua sponte dismissal of in forma pauperis cases, 1915(e)()(B) ( ed.), and provided for judicial screening and sua sponte dismissal of prisoner suits on the same four grounds, 1915A(b); 4 U.S.C. e(c)(1). Although exhaustion was a "centerpiece" of the PLRA, 548 U.S., at (slip op., -), failure to exhaust was notably not added in terms to this enumeration. There is thus no reason to suppose that the normal pleading s have to be altered to facilitate judicial screening of complaints specifically for failure to exhaust. Some courts have found that exhaustion is subsumed under the PLRA's enumerated ground authorizing early dismissal for "fail[ure] to state a claim upon which relief may be granted." 8 U.S.C. 1915A(b)(1), 1915(e)()(B); 4 U.S.C. e(c)(1). See ; 355 F.3d 104, 110 ; The point is a bit of a red herring. A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject *91 to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract. See 58 F.3d 156, ("[A] complaint may be subject to dismissal under Rule 1(b)(6) when an affirmative defense appears on its face" (internal quotation marks omitted)). See also (dismissing a complaint barred by the statute of limitations under Rule 1(b)(6)); 15 F.3d 67, 74- (dismissing a complaint barred by official immunity under Rule 1(b)(6)). See also 5B C. Wright & A. Miller, Federal Practice and Procedure 1357, pp. 708-710, 71-79 Determining that Congress meant to include failure to exhaust under the rubric of "failure to state a claim" in the screening provisions of the PLRA would thus not support treating exhaustion as a pleading requirement rather than an affirmative defense. The argument that screening would be more effective if exhaustion had to be shown in the complaint proves too much; the same could be said with respect to any affirmative defense. The rejoinder that the PLRA focused on exhaustion rather than other defenses simply highlights the failure of Congress to include exhaustion in terms among the enumerated grounds justifying dismissal upon early screening. As noted, that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim. It is to say that there is no basis for concluding that Congress implicitly meant to transform exhaustion from an affirmative defense to a pleading requirement by the curiously indirect route of specifying that courts should screen PLRA complaints and dismiss those that fail to state a claim. Respondents point to 4 U.S.C. e(g) as confirming that the usual pleading s should not apply to PLRA suits, but we think that provision supports petitioners. It specifies that defendants can waive their right to reply to a prisoner complaint without the usual consequence of being deemed to have admitted the allegations in the complaint. See e(g)(1) (allowing defendants to waive their response without admitting the allegations "[n]otwithstanding any other law or of procedure"). This shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. We understand the reasons behind the decisions of some lower courts to impose a pleading requirement on plaintiffs in this context, but that effort cannot fairly be viewed as an interpretation of the PLRA. "Whatever temptations the statesmanship of policy-making might wisely suggest," the judge's job is to construe the statute—not to make it better. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 57, 533 (1947). The judge "must not read in by way of creation," but instead abide by the "duty of restraint, th[e] humility of function as merely the translator of another's command." See United 4 L. Ed. 394 ("No mere omission which it may seem wise to have specifically provided for, justif[ies] any judicial addition to the language of the *9 statute"). Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, 507 U.S., 68, III The Sixth Circuit threw out the Williams and Walton suits because those prisoners had not identified in their initial grievances each defendant they later 136 Fed.Appx., at 86-863; at See 31 F.3d, at[7] Here again the lower court's procedural lacks a textual basis in the PLRA. The PLRA requires exhaustion of "such administrative remedies as are available," 4 U.S.C. e(a), but nothing in the statute imposes a "name all defendants" requirement along the lines of the Sixth Circuit's judicially created Respondents argue that without such a the exhaustion requirement would become a "`useless appendage,'" Brief for Respondents 44 (quoting 548 U.S., at (slip op., 1)), but the assertion is hyperbole, and the citation of misplaced. held that "proper exhaustion" was required under the PLRA, and that this requirement was not satisfied when grievances were dismissed because prisoners had missed deadlines set by the grievance policy. at (slip op., 1-13). At the time each of the grievances at issue here was filed, in contrast, the MDOC policy did not contain any provision specifying who must be named in a grievance. MDOC's policy required only that prisoners "be as specific as possible" in their grievances, while at the same time the required forms advised them to "[b]e brief and concise." The MDOC grievance form does not require a prisoner to identify a particular responsible party, and the respondent is not necessarily the allegedly culpable prison official, but rather an administrative official designated in the policy to respond to particular types of grievances at different The grievance policy specifically provides that the grievant at Step I "shall have the opportunity to explain the grievance more completely at [an] interview, enabling the Step I respondent to gather any additional information needed to respond to the grievance." Nothing in the MDOC policy itself supports the conclusion that the grievance process was improperly invoked simply because an individual later named as a defendant was not named at the first step of the grievance process. Nor does the PLRA impose such a requirement. In we held that to properly exhaust administrative remedies prisoners must "complete the administrative review process in accordance with the applicable procedural s," 548 U.S., at (slip op., at 5)—s that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, *93 therefore, is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion. As the MDOC's procedures make no mention of naming particular officials, the Sixth Circuit's imposing such a prerequisite to proper exhaustion is unwarranted. We have identified the benefits of exhaustion to include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record. See at (slip op., -8); 534 U.S., at -55, The Sixth Circuit may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. See 385 F.3d, at ; see also Brief for American Civil Liberties Union et al. as Amici Curiae 8-9, and n. 6 (collecting grievance procedures and noting that the majority do not require prisoners to identify specific individuals). We do not determine whether the grievances filed by petitioners satisfied the requirement of "proper exhaustion," at (slip op., 1), but simply conclude that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances. We leave it to the court below in the first instance to determine the sufficiency of the exhaustion in these cases. IV The final issue concerns how courts should address complaints in which the prisoner has failed to exhaust some, but not all, of the claims asserted in the complaint.[8] All agree that no unexhausted claim may be considered. The issue is whether the court should proceed with the exhausted claims, or instead—as the Sixth Circuit has held—dismiss the entire action if any one claim is not properly exhausted. See Jones 407 F.3d,[9] Here the Sixth Circuit can point to language in the PLRA in support of its Section e(a) provides that "[n]o action shall be brought" unless administrative procedures are exhausted. Respondents argue that if Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, the word *94 "claim" rather than "action" would have been used in this provision. This statutory phrasing—"no action shall be brought"—is boilerplate language. There are many instances in the Federal Code where similar language is used, but such language has not been thought to lead to the dismissal of an entire action if a single claim fails to meet the pertinent standards. Statutes of limitations, for example, are often introduced by a variant of the phrase "no action shall be brought," see, e.g., 53 U.S. 410, 140 L. Ed. d 566 ; 18 U.S.C. 0(g) ( ed., Supp. IV), but we have never heard of an entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a would serve. The same is true with respect to other uses of the "no action shall be brought" phrasing. See, e.g., Hawksbill Sea 16 F.3d 461, (dismissing only claims that fail to comply with the citizen suit notification requirement of 16 U.S.C. 1540(g)(), which states that "[n]o action may be commenced" until an agency has declined to act after being given written notice). More generally, statutory references to an "action" have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the "action" may proceed. See, e.g., Exxon Mobil 15 S. Ct. 611, 16 L. Ed. d 50 (District Court had jurisdiction over a "civil action" under 8 U.S.C. 1367(a), even if it might not have jurisdiction over each separate claim comprising the action); U.S. 156, 118 S. Ct. 53, 139 L. Ed. d 55 As a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. "[O]nly the bad claims are dismissed; the complaint as a whole is not. If Congress meant to depart from this norm, we would expect some indication of that, and we find none." (considering e(e)). Respondents note an exception to this general the total exhaustion in habeas corpus. In 10 S. Ct. 1198, 71 L. Ed. d 379 (198), we held that "mixed" habeas petitions—containing both exhausted and unexhausted claims—cannot be adjudicated. This total exhaustion applied in habeas was initially derived from considerations of "comity and federalism," not any statutory command. 544 U.S. 69, 73, 15 S. Ct. 158, L. Ed. d 440 ; at 74, 15 S. Ct. 158 (noting that Congress "preserved Lundy's total exhaustion requirement" in 8 U.S.C. 54(b)(1)(A)). Separate claims in a single habeas petition generally seek the same relief from custody, and success on one is often as good as success on another. In such a case it makes sense to require exhaustion of all claims in state court before allowing the federal action to proceed. A typical PLRA suit with multiple claims, on the other hand, may combine a wide variety of discrete complaints, about interactions with guards, prison conditions, generally applicable s, and so on, seeking different relief on each claim. There is no reason failure to exhaust on one necessarily affects any other. In any event, even if the habeas total exhaustion is pertinent, it does not in fact depart from the usual practice—as we recently held, a *95 court presented with a mixed habeas petition "should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims" Rhines, at 78, 15 S. Ct. 158. This is the opposite of the the Sixth Circuit adopted, and precisely the that respondents argue against. Respondents' reading of 4 U.S.C. e(a) to contain a total exhaustion is bolstered by the fact that other sections of the PLRA distinguish between actions and claims. Section e(c)(1), for example, provides that a court shall dismiss an action for one of four enumerated deficiencies, while e(c)() allows a court to dismiss a claim for one of these reasons without first determining whether the claim is exhausted. Similarly, 8 U.S.C. 1915A(b) directs district courts to dismiss "the complaint, or any portion of the complaint" before docketing under certain circumstances. This demonstrates that Congress knew how to differentiate between the entire action and particular claims when it wanted to, and suggests that its use of "action" rather than "claim" in 4 U.S.C. e(a) should be given effect. But the interpretation respondents advocate creates its own inconsistencies. Section e(e) contains similar language, "[n]o action may be brought for mental or emotional injury suffered while in custody without a prior showing of physical injury," yet respondents cite no case interpreting this provision to require dismissal of the entire lawsuit if only one claim does not comply, and again we see little reason for such an approach. Accord, (dismissing only the portions of the complaint barred by e(e)); see also 30 F.3d 1361 (same). Interpreting the phrase "no action shall be brought" to require dismissal of the entire case under e(a) but not e(e) would contravene our normal s of statutory construction. National Credit Union U.S. 479, 501-50, 118 S. Ct. 97, 140 L. Ed. d 1 In pressing the total exhaustion argument, respondents also marshal the policy and purpose underlying the PLRA—this time in a supporting rather than lead role. The invigorated exhaustion requirement is a "centerpiece" of the statute, 548 U.S., at (slip op., -), and if the exhaustion requirement of e(a) is not effectuated by a total exhaustion they argue, inmates will have little incentive to ensure that they have exhausted all available administrative remedies before proceeding to court. The PLRA mandated early judicial screening to reduce the burden of prisoner litigation on the courts; a total exhaustion allows courts promptly to dismiss an action upon identifying an unexhausted claim. The alternative approach turns judges into editors of prisoner complaints, rather than creating an incentive for prisoners to exhaust properly. See We are not persuaded by these policy arguments. In fact, the effect of a total exhaustion could be that inmates will file various claims in separate suits, to avoid the possibility of an unexhausted claim tainting the others. That would certainly not comport with the purpose of the PLRA to reduce the quantity of inmate suits. Additionally, district judges who delve into a prisoner complaint only to realize it contains an unexhausted claim, requiring dismissal of the entire complaint under the total exhaustion will often have to begin the process all over again *96 when the prisoner refiles. In light of typically short prison grievance time limits, prisoners' refiled complaints will often be identical to what the district court would have considered had it simply dismissed unexhausted claims as it encountered them and proceeded with the exhausted ones. Perhaps filing fees and concerns about the applicability of the "three strikes" 8 U.S.C. 1915(g), would mitigate these effects, but the debate about consequences is close enough that there is no clear reason to depart from the more typical claim-by-claim approach. * * * We are not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystacks. We once again reiterate, however—as we did unanimously in Leatherman, Swierkiewicz, and Hill—that adopting different and more onerous pleading s to deal with particular categories of cases should be done through established making procedures, and not on a case-by-case basis by the courts. The judgments of the United States Court of Appeals for the Sixth Circuit are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Scalia

concurring

United States v. Irvine

https://www.courtlistener.com/opinion/117840/united-states-v-irvine/

https://www.courtlistener.com/api/rest/v3/clusters/117840/

1993-039

I join the judgment of the Court, and its opinion except for Part III—A. It seems to me that the basis for the "reasonable time" limitation in the Regulation cannot be, as the Court says, ante, at 235, the need to deprive the beneficiary of "a virtually unlimited opportunity to consider estate planning consequences." Considering estate planning consequences (not a malum in se ) is nowhere condemned by the tax laws, and I would see no basis for the Treasury Department's arbitrarily declaring a disclaimer to be a gift solely in order to deter such consideration. The Secretary undoubtedly has broad discretion to determine the meaning of the term "transfer" as it is used in the gift tax statute, and undoubtedly may indulge an antagonism to estate planning in choosing among permissible meanings. But "disclaimer after opportunity for estate tax planning" is simply not a permissible meaning. The justification for the "reasonable time" limitation must, as always, be a textual one. It consists, in my view, of the fact that the failure to make a reasonably prompt disclaimer of a known bequest is an implicit acceptance. Qui tacet, consentire videtur. Thus, a later disclaimer, which causes the property to go to someone else by operation of law, is effectively a transfer to that someone else. (The implication from nondisclaimer is much weaker when the interest is a *243 contingent one, but Jewett v. Commissioner, 455 U.S. 305 (1982), resolved that issue—perhaps incorrectly.) While state disclaimer laws have chosen to override the reasonable implication of nondisclaimer, the Treasury Department regulations correctly (or at least permissibly) conclude that the federal gift tax does not.

I join the judgment of the Court, and its opinion except for Part III—A. It seems to me that the basis for the "reasonable time" limitation in the Regulation cannot be, as the Court says, ante, at 235, the need to deprive the beneficiary of "a virtually unlimited opportunity to consider estate planning consequences." Considering estate planning consequences (not a malum in se ) is nowhere condemned by the tax laws, and I would see no basis for the Treasury Department's arbitrarily declaring a disclaimer to be a gift solely in order to deter such consideration. The Secretary undoubtedly has broad discretion to determine the meaning of the term "transfer" as it is used in the gift tax statute, and undoubtedly may indulge an antagonism to estate planning in choosing among permissible meanings. But "disclaimer after opportunity for estate tax planning" is simply not a permissible meaning. The justification for the "reasonable time" limitation must, as always, be a textual one. It consists, in my view, of the fact that the failure to make a reasonably prompt disclaimer of a known bequest is an implicit acceptance. Qui tacet, consentire videtur. Thus, a later disclaimer, which causes the property to go to someone else by operation of law, is effectively a transfer to that someone else. resolved that issue—perhaps incorrectly.) While state disclaimer laws have chosen to override the reasonable implication of nondisclaimer, the Treasury Department regulations correctly (or at least permissibly) conclude that the federal gift tax does not.

Justice Powell

concurring

HL v. Matheson

https://www.courtlistener.com/opinion/110432/hl-v-matheson/

https://www.courtlistener.com/api/rest/v3/clusters/110432/

1980-057

I This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage *414 parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II). I agree with the Court that Utah Code Ann. § 76-7-304 (2) (1978) does not unconstitutionally burden this appellant's right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether § 76-7-304 (2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante, at 412, n. 22. I write to make clear that I continue to entertain the views on this question stated in my opinion in Bellotti II. See n. 8, infra. II Section 76-7-304 (2) requires that a physician "[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor."[1] Appellant attacks this notice requirement on the ground that it burdens the right of a minor who is emancipated, or who is mature enough to make the abortion decision independently of parental involvement, or whose parents will react obstructively upon notice. See ante, at 405. The threshold question, as the Court's opinion notes, is whether appellant has standing to make such a challenge. Standing depends initially on what the complaint alleges, Warth v. Seldin, 422 U.S. 490, 498, 501 (1975), as courts have the power "only to redress or otherwise to protect against injury to the complaining party." *415 Id., at 499. The complaint in this case was carefully drawn. Appellant's allegations about herself and her familial situation are few and laconic. She alleged that she did "not wish to inform her parents of her condition and believe[d] that it [was] in her best interest that her parents not be informed of her condition." Complaint ¶ 6. She also alleged that she understood "what is involved in her decision," ¶ 9, and that the physician she consulted had told her that "he could not and would not perform an abortion upon her without informing her parents prior to aborting her." ¶ 7. Appellant was 15 years of age and lived at home with her parents when she filed her complaint. She did not claim to be mature, and made no allegations with respect to her relationship with her parents. She did not aver that they would be obstructive if notified, or advance any other reason why notice to her parents would not be in her best interest. Similarly, the complaint contains no allegation that the physician —while apparently willing to perform the abortion— believed that notifying her parents would have adverse consequences. In fact, nothing in the record shows that the physician had any information about appellant's parents or familial situation, or even that he had examined appellant. A This case does not come to us on the allegations of the complaint alone. An evidentiary hearing occurred after the trial court had denied appellant's motion for a preliminary injunction. Appellant was the only witness, and her testimony —and statements by her counsel—make clear beyond any question that the "bare bones" averments of the complaint were deliberate, and that appellant is arguing that a mere notice requirement is invalid per se without regard to the minor's age, whether she is emancipated, whether her parents are likely to be obstructive, or whether there is some health or other reason why notification would not be in the minor's best interests. *416 On direct examination, appellant merely verified the allegations of her complaint by affirming each allegation as paraphrased for her by her lawyer in a series of leading questions.[2] Her testimony on cross-examination added nothing to the complaint.[3] In addition, appellant's lawyer insistently objected to all questions by counsel for the State as to the appellant's reasons for not wishing to notify her parents.[4] The trial court, on its own initiative, pressed unsuccessfully to elicit some reasons, inquiring how it could "find out the validity of [appellant's] reasons without [the State's lawyer] being permitted to cross-examine her." Tr. 9. Appellant's lawyer replied: "It is our position [c]onstitutionally that she has the right to make [the abortion] decision and if she has consulted with a counselor and the counselor concurs that those are valid reasons, why then— ..... "In terms of going beyond [the complaint allegations], our point is that the specifics of the reasons are really irrelevant to the [c]onstitutional issue." Id., at 9-10 (emphasis supplied). *417 When appellant's lawyer insisted that the facts with respect to this particular minor were irrelevant, the trial court sustained the validity of the statute.[5] In sum, and as the Court's opinion emphasizes, appellant alleges nothing more than that she desires an abortion, that she has decided—for reasons which she declined to reveal— that it is in her best interest not to notify her parents, and that a physician would be willing to perform the abortion if notice were not required. Although the trial court did not rule in terms of standing, it is clear that these bald allegations do not confer standing to claim that § 76-7-304 (2) unconstitutionally burdens the right either of a mature minor or of a minor whose best interests would not be served by parental notification.[6] They confer standing only to claim that § 76-7-304 (2) is an unconstitutional burden upon an unemancipated *418 minor who desires an abortion without parental notification but also desires not to explain to anyone her reasons either for wanting the abortion or for not wanting to notify her parents.[7] B On the facts of this case, I agree with the Court that § 76-7-304 (2) is not an unconstitutional burden on appellant's right to an abortion. Numerous and significant interests compete when a minor decides whether or not to abort her *419 pregnancy. The right to make that decision may not be unconstitutionally burdened. Roe v. Wade, 410 U.S. 113, 154 (1973); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 74-75. In addition, the minor has an interest in effectuating her decision to abort, if that is the decision she makes. Id., at 75; Bellotti II, 443 U. S., at 647. The State, aside from the interest it has in encouraging childbirth rather than abortion, cf. Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980), has an interest in fostering such consultation as will assist the minor in making her decision as wisely as possible. Planned Parenthood of Central Mo. v. Danforth, supra, at 91 (STEWART, J., concurring); post, at 422-423 (STEVENS, J., concurring in judgment). The State also may have an interest in the family itself, the institution through which "we inculcate and pass down many of our most cherished values, moral and cultural." Moore v. East Cleveland, 431 U.S. 494, 503-504 (1977). Parents have a traditional and substantial interest in, as well as a responsibility for, the rearing and welfare of their children, especially during immature years. Bellotti II, supra, at 637-639. None of these interests is absolute. Even an adult woman's right to an abortion is not unqualified. Roe v. Wade, supra, at 154. Particularly when a minor becomes pregnant and considers an abortion, the relevant circumstances may vary widely depending upon her age, maturity, mental and physical condition, the stability of her home if she is not emancipated, her relationship with her parents, and the like. If we were to accept appellant's claim that § 76-7-304 (2) is per se an invalid burden on the asserted right of a minor to make the abortion decision, the circumstances which normally are relevant would—as her counsel insisted—be immaterial. Supra, at 417. The Court would have to decide that the minor's wishes are virtually absolute. To be sure, our cases have emphasized the necessity to consult a physician. But we have never held with respect to a minor that the opinion *420 of a single physician as to the need or desirability of an abortion outweighs all state and parental interests.[8] In sum, a State may not validly require notice to parents in all cases, without providing an independent decisionmaker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests. My opinion in Bellotti II, joined by three other Justices, stated at some length the reasons why such a decisionmaker is needed. Bellotti II, supra, at 642-648.[9] The circumstances relevant to the abortion decision by a minor can and do vary so substantially that absolute rules— requiring parental notice in all cases or in none[10]—would create an inflexibility that often would allow for no consideration of the rights and interests identified above. Our cases have never gone to this extreme, and in my view should not. JUSTICE STEVENS, concurring in the judgment. As the Court points out, this is a class action in which the appellant represents all unmarried "`minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so' because of their physicians' insistence on complying with § 76-7-304 (2)" of the Utah *421 Code. Ante, at 401. The Utah Supreme Court held that the statute may validly be applied to all members of that class. This appeal therefore squarely presents the question whether that holding is consistent with the Constitution of the United States. The Court, however, declines to reach this question and instead decides the narrower question presented by the appellant's particular factual situation. Because I believe we have a duty to answer the broader question decided by the Utah Supreme Court, I am unable to join the opinion of the Court. In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 72-75 (1976), the Court held that a pregnant minor's right to make the decision to obtain an abortion may not be conditioned on parental consent. My dissent from that holding, id., at 102-105, does not qualify my duty to respect it as a part of our law. See Bellotti v. Baird, 443 U.S. 622, 652-656 (1979) (STEVENS, J., concurring in judgment). However, as I noted in Bellotti, neither that case nor Danforth "determines the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto." 443 U.S., at 654, n. 1. Since the outcome in this case is not controlled by Danforth, the principles that I considered dispositive of the parental consent issue in that case plainly dictate that the Utah statute now before us be upheld. The fact that a state statute may have some impact upon a minor's exercise of his or her rights begins, rather than ends, the constitutional inquiry. Once the statute's impact is identified, it must be evaluated in light of the state interests underlying the statute. The state interest that the Utah statute at issue in this case attempts to advance is essentially the same state interest considered in Danforth. As I noted in Danforth, that interest is fundamental and substantial: "The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he *422 may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in Roe v. Wade [410 U.S. 113 (1973)] that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision. "The abortion decision is, of course, more important than the decision to attend or to avoid an adult motion picture, or the decision to work long hours in a factory. It is not necessarily any more important than the decision to run away from home or the decision to marry. But even if it is the most important kind of a decision a young person may ever make, that assumption merely enhances the quality of the State's interest in maximizing the probability that the decision be made correctly and with full understanding of the consequences of either alternative." 428 U.S., at 102-103. In my opinion, the special importance of a young woman's abortion decision, emphasized by JUSTICE MARSHALL in dissent, post, at 435-436, provides a special justification for reasonable state efforts intended to ensure that the decision be wisely made. Such reasonable efforts surely may include a requirement that an abortion be procured only after consultation *423 with a licensed physician. And, because "the most significant consequences of the [abortion] decision are not medical in character," 428 U.S., at 103, the State unquestionably has an interest in ensuring that a young woman receive other appropriate consultation as well. In my opinion, the quality of that interest is plainly sufficient to support a state legislature's determination that such appropriate consultation should include parental advice. Of course, a conclusion that the Utah statute is invalid would not prevent young pregnant women from voluntarily seeking the advice of their parents prior to making the abortion decision. But the State may legitimately decide that such consultation should be made more probable by ensuring that parents are informed of their daughter's decision: "If there is no parental-[notice] requirement, many minors will submit to the abortion procedure without ever informing their parents. An assumption that the parental reaction will be hostile, disparaging, or violent no doubt persuades many children simply to bypass parental counsel which would in fact be loving, supportive, and, indeed, for some indispensable. It is unrealistic, in my judgment, to assume that every parent-child relationship is either (a) so perfect that communication and accord will take place routinely or (b) so imperfect that the absence of communication reflects the child's correct prediction that the parent will . . . [act] arbitrarily to further a selfish interest rather than the child's interest. A state legislature may conclude that most parents will be primarily interested in the welfare of their children,[[1]] and further, that the imposition *424 of a parental-[notice] requirement is an appropriate method of giving the parents an opportunity to foster that welfare by helping a pregnant distressed child to make and to implement a correct decision." Id., at 103-104 (STEVENS, J.). Utah's interest in its parental-notice statute is not diminished by the fact that there can be no guarantee that meaningful parent-child consultation will actually occur. Good-faith compliance with the statute's requirements would tend to facilitate communication between daughters and parents regarding the abortion decision. The possibility that some parents will not react with compassion and understanding upon being informed of their daughter's predicament or that, even if they are receptive, they will incorrectly advise her, does not undercut the legitimacy of the State's attempt to establish a procedure that will enhance the probability that a pregnant young woman exercise as wisely as possible her right to make the abortion decision. The fact that certain members of the class of unmarried "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies" may actually be emancipated or sufficiently mature to make a well-reasoned abortion *425 decision does not, in my view, undercut the validity of the Utah statute. As I stated in Danforth, a state legislature has constitutional power to utilize, for purposes of implementing a parental-notice requirement, a yardstick based upon the chronological age of unmarried pregnant women. That this yardstick will be imprecise or even unjust in particular cases does not render its use by a state legislature impermissible under the Federal Constitution. 428 U.S., at 104-105. Accordingly, I would reach the question reserved by the Court and hold that the Utah parental-notice statute is constitutionally valid as applied to all members of the certified class.[2] Because my view in this case, as in Danforth, is that the State's interest in protecting a young pregnant woman from the consequences of an incorrect abortion decision is sufficient to justify the parental-notice requirement, I agree that the decision of the Utah Supreme Court should be affirmed.

I This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage *414 parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central ; I agree with the Court that (2) (1978) does not unconstitutionally burden this appellant's right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether 76-7-304 (2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante, at 412, n. 22. I write to make clear that I continue to entertain the views on this question stated in my opinion in See n. 8, infra. Section 76-7-304 (2) requires that a physician "[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor."[1] Appellant attacks this notice requirement on the ground that it burdens the right of a minor who is emancipated, or who is mature enough to make the abortion decision independently of parental involvement, or whose parents will react obstructively upon notice. See ante, at 405. The threshold question, as the Court's opinion notes, is whether appellant has standing to make such a challenge. Standing depends initially on what the complaint alleges, as courts have the power "only to redress or otherwise to protect against injury to the complaining party." *415 The complaint in this case was carefully drawn. Appellant's allegations about herself and her familial situation are few and laconic. She alleged that she did "not wish to inform her parents of her condition and believe[d] that it [was] in her best interest that her parents not be informed of her condition." Complaint ¶ 6. She also alleged that she understood "what is involved in her decision," ¶ 9, and that the physician she consulted had told her that "he could not and would not perform an abortion upon her without informing her parents prior to aborting her." ¶ 7. Appellant was 15 years of age and lived at home with her parents when she filed her complaint. She did not claim to be mature, and made no allegations with respect to her relationship with her parents. She did not aver that they would be obstructive if notified, or advance any other reason why notice to her parents would not be in her best interest. Similarly, the complaint contains no allegation that the physician —while apparently willing to perform the abortion— believed that notifying her parents would have adverse consequences. In fact, nothing in the record shows that the physician had any information about appellant's parents or familial situation, or even that he had examined appellant. A This case does not come to us on the allegations of the complaint alone. An evidentiary hearing occurred after the trial court had denied appellant's motion for a preliminary injunction. Appellant was the only witness, and her testimony —and statements by her counsel—make clear beyond any question that the "bare bones" averments of the complaint were deliberate, and that appellant is arguing that a mere notice requirement is invalid per se without regard to the minor's age, whether she is emancipated, whether her parents are likely to be obstructive, or whether there is some health or other reason why notification would not be in the minor's best interests. *416 On direct examination, appellant merely verified the allegations of her complaint by affirming each allegation as paraphrased for her by her lawyer in a series of leading questions.[2] Her testimony on cross-examination added nothing to the complaint.[3] In addition, appellant's lawyer insistently objected to all questions by counsel for the State as to the appellant's reasons for not wishing to notify her parents.[4] The trial court, on its own initiative, pressed unsuccessfully to elicit some reasons, inquiring how it could "find out the validity of [appellant's] reasons without [the State's lawyer] being permitted to cross-examine her." Tr. 9. Appellant's lawyer replied: "It is our position [c]onstitutionally that she has the right to make [the abortion] decision and if she has consulted with a counselor and the counselor concurs that those are valid reasons, why then— "In terms of going beyond [the complaint allegations], our point is that the specifics of the reasons are really irrelevant to the [c]onstitutional issue." *417 When appellant's lawyer insisted that the facts with respect to this particular minor were irrelevant, the trial court sustained the validity of the statute.[5] In sum, and as the Court's opinion emphasizes, appellant alleges nothing more than that she desires an abortion, that she has decided—for reasons which she declined to reveal— that it is in her best interest not to notify her parents, and that a physician would be willing to perform the abortion if notice were not required. Although the trial court did not rule in terms of standing, it is clear that these bald allegations do not confer standing to claim that 76-7-304 (2) unconstitutionally burdens the right either of a mature minor or of a minor whose best interests would not be served by parental notification.[6] They confer standing only to claim that 76-7-304 (2) is an unconstitutional burden upon an unemancipated *418 minor who desires an abortion without parental notification but also desires not to explain to anyone her reasons either for wanting the abortion or for not wanting to notify her parents.[7] B On the facts of this case, I agree with the Court that 76-7-304 (2) is not an unconstitutional burden on appellant's right to an abortion. Numerous and significant interests compete when a minor decides whether or not to abort her *419 pregnancy. The right to make that decision may not be unconstitutionally burdened. ; Planned Parenthood of Central -75. In addition, the minor has an interest in effectuating her decision to abort, if that is the decision she makes. ; The State, aside from the interest it has in encouraging childbirth rather than abortion, cf. ; has an interest in fostering such consultation as will assist the minor in making her decision as wisely as possible. Planned Parenthood of Central ; post, at 422-423 The State also may have an interest in the family itself, the institution through which "we inculcate and pass down many of our most cherished values, moral and cultural." Parents have a traditional and substantial interest in, as well as a responsibility for, the rearing and welfare of their children, especially during immature years. None of these interests is absolute. Even an adult woman's right to an abortion is not unqualified. at Particularly when a minor becomes pregnant and considers an abortion, the relevant circumstances may vary widely depending upon her age, maturity, mental and physical condition, the stability of her home if she is not emancipated, her relationship with her parents, and the like. If we were to accept appellant's claim that 76-7-304 (2) is per se an invalid burden on the asserted right of a minor to make the abortion decision, the circumstances which normally are relevant would—as her counsel insisted—be The Court would have to decide that the minor's wishes are virtually absolute. To be sure, our cases have emphasized the necessity to consult a physician. But we have never held with respect to a minor that the opinion *420 of a single physician as to the need or desirability of an abortion outweighs all state and parental interests.[8] In sum, a State may not validly require notice to parents in all cases, without providing an independent decisionmaker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests. My opinion in joined by three other Justices, stated at some length the reasons why such a decisionmaker is needed.[9] The circumstances relevant to the abortion decision by a minor can and do vary so substantially that absolute rules— requiring parental notice in all cases or in none[10]—would create an inflexibility that often would allow for no consideration of the rights and interests identified above. Our cases have never gone to this extreme, and in my view should not. JUSTICE STEVENS, concurring in the judgment. As the Court points out, this is a class action in which the appellant represents all unmarried "`minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so' because of their physicians' insistence on complying with 76-7-304 (2)" of the Utah *421 Code. Ante, at 401. The Utah Supreme Court held that the statute may validly be applied to all members of that class. This appeal therefore squarely presents the question whether that holding is consistent with the Constitution of the United States. The Court, however, declines to reach this question and instead decides the narrower question presented by the appellant's particular factual situation. Because I believe we have a duty to answer the broader question decided by the Utah Supreme Court, I am unable to join the opinion of the Court. In Planned Parenthood of Central the Court held that a pregnant minor's right to make the decision to obtain an abortion may not be conditioned on parental consent. My dissent from that holding, does not qualify my duty to respect it as a part of our law. See However, as I noted in neither that case nor "determines the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto." n. 1. Since the outcome in this case is not controlled by the principles that I considered dispositive of the parental consent issue in that case plainly dictate that the Utah statute now before us be upheld. The fact that a state statute may have some impact upon a minor's exercise of his or her rights begins, rather than ends, the constitutional inquiry. Once the statute's impact is identified, it must be evaluated in light of the state interests underlying the statute. The state interest that the Utah statute at issue in this case attempts to advance is essentially the same state interest considered in As I noted in that interest is fundamental and substantial: "The State's interest in the welfare of its young citizens justifies a variety of protective measures. Because he *422 may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent. Indeed, such consent is essential even when the young woman is already pregnant. The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible. Therefore, the holding in [ ] that the abortion decision is entitled to constitutional protection merely emphasizes the importance of the decision; it does not lead to the conclusion that the state legislature has no power to enact legislation for the purpose of protecting a young pregnant woman from the consequences of an incorrect decision. "The abortion decision is, of course, more important than the decision to attend or to avoid an adult motion picture, or the decision to work long hours in a factory. It is not necessarily any more important than the decision to run away from home or the decision to marry. But even if it is the most important kind of a decision a young person may ever make, that assumption merely enhances the quality of the State's interest in maximizing the probability that the decision be made correctly and with full understanding of the consequences of either alternative." -103. In my opinion, the special importance of a young woman's abortion decision, emphasized by JUSTICE MARSHALL in dissent, post, at 435-436, provides a special justification for reasonable state efforts intended to ensure that the decision be wisely made. Such reasonable efforts surely may include a requirement that an abortion be procured only after consultation *423 with a licensed physician. And, because "the most significant consequences of the [abortion] decision are not medical in character," the State unquestionably has an interest in ensuring that a young woman receive other appropriate consultation as well. In my opinion, the quality of that interest is plainly sufficient to support a state legislature's determination that such appropriate consultation should include parental advice. Of course, a conclusion that the Utah statute is invalid would not prevent young pregnant women from voluntarily seeking the advice of their parents prior to making the abortion decision. But the State may legitimately decide that such consultation should be made more probable by ensuring that parents are informed of their daughter's decision: "If there is no parental-[notice] requirement, many minors will submit to the abortion procedure without ever informing their parents. An assumption that the parental reaction will be hostile, disparaging, or violent no doubt persuades many children simply to bypass parental counsel which would in fact be loving, supportive, and, indeed, for some indispensable. It is unrealistic, in my judgment, to assume that every parent-child relationship is either (a) so perfect that communication and accord will take place routinely or (b) so imperfect that the absence of communication reflects the child's correct prediction that the parent will [act] arbitrarily to further a selfish interest rather than the child's interest. A state legislature may conclude that most parents will be primarily interested in the welfare of their children,[[1]] and further, that the imposition *424 of a parental-[notice] requirement is an appropriate method of giving the parents an opportunity to foster that welfare by helping a pregnant distressed child to make and to implement a correct decision." Utah's interest in its parental-notice statute is not diminished by the fact that there can be no guarantee that meaningful parent-child consultation will actually occur. Good-faith compliance with the statute's requirements would tend to facilitate communication between daughters and parents regarding the abortion decision. The possibility that some parents will not react with compassion and understanding upon being informed of their daughter's predicament or that, even if they are receptive, they will incorrectly advise her, does not undercut the legitimacy of the State's attempt to establish a procedure that will enhance the probability that a pregnant young woman exercise as wisely as possible her right to make the abortion decision. The fact that certain members of the class of unmarried "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies" may actually be emancipated or sufficiently mature to make a well-reasoned abortion *425 decision does not, in my view, undercut the validity of the Utah statute. As I stated in a state legislature has constitutional power to utilize, for purposes of implementing a parental-notice requirement, a yardstick based upon the chronological age of unmarried pregnant women. That this yardstick will be imprecise or even unjust in particular cases does not render its use by a state legislature impermissible under the Federal -105. Accordingly, I would reach the question reserved by the Court and hold that the Utah parental-notice statute is constitutionally valid as applied to all members of the certified class.[2] Because my view in this case, as in is that the State's interest in protecting a young pregnant woman from the consequences of an incorrect abortion decision is sufficient to justify the parental-notice requirement, I agree that the decision of the Utah Supreme Court should be affirmed.

Justice O'Connor

concurring

Reno v. Catholic Social Services, Inc.

https://www.courtlistener.com/opinion/112889/reno-v-catholic-social-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/112889/

1992-100

I agree that the District Courts in these two cases, Reno v. Catholic Social Services, Inc. (CSS), and INS v. League of United Latin American Citizens (LULAC), erred in extending the application period for legalization beyond May 4, 1988, the end of the 12-month interval specified by the Immigration Reform and Control Act of 1986. I would not, however, reach this result on ripeness grounds. The Court holds that a member of the plaintiff class in CSS or LULAC who failed to apply to the INS during the 12-month period does not now have a ripe claim to extend the application deadline. In my view, that claim became ripe after May 4, 1988, even if it was not ripe before. The claim may well lack merit, but it is no longer premature. The Court of Appeals did not consider the problem of ripeness, and the submissions to this Court have not discussed *68 that problem except in passing. See Pet. for Cert. 11, n. 13; Brief for Petitioners 20; Brief for Respondents 17, n. 23. Rather, certiorari was granted on two questions, to which the parties rightly have adhered: first, whether the District Courts had jurisdiction under 8 U.S. C. § 1255a(f), the judicial-review provision of Title II of the Reform Act; and second, whether the courts properly extended the application period. See Pet. for Cert. i. The Court finds the jurisdictional challenge meritless under McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), see ante, at 53-56, as do I. But instead of proceeding to consider the second question presented, the Court sua sponte attempts to resolve the case on ripeness grounds. It reaches out to hold that "the promulgation of the challenged regulations did not itself give each CSS and LULAC class member a ripe claim; a class member's claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him." Ante, at 59. This is new and, in my view, incorrect law. Moreover, even if it is correct, the new ripeness doctrine propounded by the Court is irrelevant to the case at hand. Our prior cases concerning anticipatory challenges to agency rules do not specify when an anticipatory suit may be brought against a benefit-conferring rule, such as the INS regulations here. An anticipatory suit by a would-be beneficiary, who has not yet applied for the benefit that the rule denies him, poses different ripeness problems than a preenforcement suit against a duty-creating rule, see Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156 (1967) (permitting pre-enforcement suit). Even if he succeeds in his anticipatory action, the would-be beneficiary will not receive the benefit until he actually applies for it; and the agency might then deny him the benefit on grounds other than his ineligibility under the rule. By contrast, a successful suit against the duty-creating rule will relieve the plaintiff immediately of a burden that he otherwise would bear. *69 Yet I would not go so far as to state that a suit challenging a benefit-conferring rule is necessarily unripe simply because the plaintiff has not yet applied for the benefit. "Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974). If it is "inevitable" that the challenged rule will "operat[e]" to the plaintiff's disadvantage—if the court can make a firm prediction that the plaintiff will apply for the benefit, and that the agency will deny the application by virtue of the rule—then there may well be a justiciable controversy that the court may find prudent to resolve. I do not mean to suggest that a simple anticipatory challenge to the INS regulations would be ripe under the approach I propose. Cf. ante, at 58-59, n. 19. That issue need not be decided because, as explained below, these cases are not a simple anticipatory challenge. See infra, at 71-74. My intent is rather to criticize the Court's reasoning—its reliance on a categorical rule that would-be beneficiaries cannot challenge benefit-conferring regulations until they apply for benefits. Certainly the line of cases beginning with Abbott Laboratories does not support this categorical approach. That decision itself discusses with approval an earlier case that involved an anticipatory challenge to a benefit-conferring rule. "[I]n United States v. Storer Broadcasting Co., 351 U.S. 192, the Court held to be a final agency action . . . an FCC regulation announcing a Commission policy that it would not issue a television license to an applicant already owning five such licenses, even though no spe- cific application was before the Commission." 387 U.S., at 151 (emphasis added). *70 More recently, in EPA v. National Crushed Stone Assn., 449 U.S. 64 (1980), the Court held that a facial challenge to the variance provision of an EPA pollution-control regulation was ripe even "prior to application of the regulation to a particular [company's] request for a variance." Id., at 72, n. 12. And in Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190 (1983), the Court permitted utilities to challenge a state law imposing a moratorium on the certification of nuclear power plants, even though the utilities had not yet applied for a certificate. See id., at 200-202. To be sure, all of these decisions involved licenses, certificates, or variances, which exempt the bearer from otherwise-applicable duties; but the same is true of the instant cases. The benefit conferred by the Reform Act—an adjustment in status to lawful temporary resident alien, see 8 U.S. C. § 1255a(a)—readily can be conceptualized as a "license" or "certificate" to remain in the United States, or a "variance" from the immigration laws. As for Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), the Court there stated: "Absent [explicit statutory authorization for immediate judicial review], a regulation is not ordinarily considered the type of agency action `ripe' for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is `ripe' for review at once, whether or not explicit statutory review apart from the APA is provided.)" Id., at 891-892 (citations omitted). *71 This language does not suggest that an anticipatory challenge to a benefit-conferring rule will of necessity be constitutionally unripe, for otherwise an "explicit statutory review" provision would not help cure the ripeness problem. Rather, Lujan points to the prudential considerations that weigh in the ripeness calculus: the need to "fles[h] out" the controversy and the burden on the plaintiff who must "adjust his conduct immediately." These are just the kinds of factors identified in the two-part, prudential test for ripeness that Abbott Laboratories articulated. "The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S., at 149. See Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581-582 (1985) (relying upon Abbott Laboratories test); Pacific Gas, supra, at 200-203 (same); National Crushed Stone, supra, at 72-73, n. 12 (same). At the very least, where the challenge to the benefit-conferring rule is purely legal, and where the plaintiff will suffer hardship if he cannot raise his challenge until later, a justiciable, anticipatory challenge to the rule may well be ripe in the prudential sense. Thus I cannot agree with the Court that ripeness will never obtain until the plaintiff actually applies for the benefit. But this new rule of ripeness law, even if correct, is irrelevant here. These cases no longer fall in the above-described category of anticipatory actions, where a would-be beneficiary simply seeks to invalidate a benefit-conferring rule before he applies for benefits. As the cases progressed in the District Courts, respondents amended their complaints to request an additional remedy beyond the invalidation of the INS regulations: an extension of the 12-month application period. Compare Sixth Amended Complaint in CSS (Record, Doc. No. 140) and First Amended Complaint in LULAC (Record, Doc. No. 56) with Third Amended Complaint in CSS (Record, Doc. No. 69) and Complaint in LULAC (Record, *72 Doc. No. 1). That period expired on May 4, 1988, and the District Courts thereafter granted an extension. See App. to Pet. for Cert. 22a—28a, 50a—60a (orders dated June and August 1988). The only issue before us is whether these orders should have been entered. See ante, at 48-49, 52-53. Even if the Court is correct that a plaintiff cannot seek to invalidate an agency's benefit-conferring rule before applying to the agency for the benefit, it is a separate question whether the would-be beneficiary must make the wholly futile gesture of submitting an application when the application period has expired and he is seeking to extend it. In the instant cases, I do not see why a class member who failed to apply to the INS within the 12-month period lacks a ripe claim to extend the application deadline, now that the period actually has expired. If Congress in the Reform Act had provided for an 18-month application period, and the INS had closed the application period after only 12 months, no one would argue that court orders extending the period for 6 more months should be vacated on ripeness grounds. The orders actually before us are not meaningfully distinguishable. Of course, respondents predicate their argument for extending the period on the invalidity of the INS regulations, see infra, at 75-77, not on a separate statutory provision governing the length of the period, but this difference does not change the ripeness calculus. The "basic rationale" behind our ripeness doctrine "is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements," when those "disagreements" are premised on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Union Carbide, supra, at 580-581 (internal quotation marks omitted). There is no contingency to the closing of the 12-month application period. It is certain that an alien who now applies to the INS for legalization will be denied that benefit because the period has closed. Nor does prudence justify this Court in postponing an alien's claim to extend the period, since that *73 claim is purely legal and since a delayed opportunity to seek legalization will cause grave uncertainty. The Court responds to this point by reiterating that class members who failed to apply to the INS have not yet suffered a "concrete" injury, because the INS has not denied them legalization by virtue of the challenged regulations. See ante, at 59-60, n. 20. At present, however, class members are seeking to redress a different, and logically prior, injury: the denial of the very opportunity to apply for legalization. The Court's ripeness analysis focuses on the wrong question: whether "the promulgation of the challenged regulations [gave] each CSS and LULAC class member a ripe claim." Ante, at 59 (emphasis added). But the question is not whether the class members' claims were ripe at the inception of these suits, when respondents were seeking simply to invalidate the INS regulations and the 12-month application period had not yet closed. Whatever the initial status of those claims, they became ripe once the period had in fact closed and respondents had amended their complaints to seek an extension. In the Regional Rail Reorganization Act Cases, this Court held that "since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court's decision that must govern." 419 U.S., at 140. Accord, Buckley v. Valeo, 424 U.S. 1, 114-118 (1976) (per curiam). Similarly, in the cases before us, it is the situation now (and, as it happens, at the time of the District Courts' orders), rather than at the time of the initial complaints, that must govern. The Court also suggests that respondents' claim to extend the application period may well be "flatly" barred by 8 U.S. C. § 1255a(f)(2), which provides: "No denial of adjustment of status [under Title II of the Reform Act] based on a late filing of an application for such adjustment may be reviewed by [any] court . . . ." See ante, at 60, n. 20. I find it remarkable that the Court might construe § 1255a(f)(2) as barring any suit seeking to extend the application deadline *74 set by the INS, while at the same time interpreting § 1255a(f)(1) not to bar respondents' substantive challenge to the INS regulations, see ante, at 53-56. As the INS itself observes, the preclusive language in § 1255a(f)(1) is "broader" than in § 1255a(f)(2), because the latter provision uses the word "denial" instead of "determination." See Brief for Petitioners 19. If Congress in the Reform Act had provided for an 18-month application period, and the INS had closed the period after only 12 months, I cannot believe that § 1255a(f)(2) would preclude a suit seeking to extend the period by 6 months. Nor do I think that § 1255a(f)(2) bars respondents' claim to extend the period, because that claim is predicated on their substantive challenge to the INS regulations, which in turn is permitted by § 1255a(f)(1). In any event, § 1255a(f)(2) concerns reviewability, not ripeness; whether or not that provision precludes the instant actions, the Court's ripeness analysis remains misguided. Of course, the closing of the application period was not an unalloyed benefit for class members who had failed to apply. After May 4, 1988, those aliens had ripe claims, but they also became statutorily ineligible for legalization. The Reform Act authorizes the INS to adjust the status of an illegal alien only if he "appl[ies] for such adjustment during the 12-month period beginning on a date . . . designated by the Attorney General." 8 U.S. C. § 1255a(a)(1)(A). As the INS rightly argues, this provision precludes the legalization of an alien who waited to apply until after the 12-month period had ended. The District Courts' orders extending the application period were not unripe, either constitutionally or prudentially, but they were impermissible under the Reform Act. "A court is no more authorized to overlook the valid [requirement] that applications be [submitted] than it is to overlook any other valid requirement for the receipt of benefits." Schweiker v. Hansen, 450 U.S. 785, 790 (1981) (per curiam). *75 Respondents assert that equity requires an extension of the time limit imposed by § 1255a(a)(1)(A). Whether that provision is seen as a limitations period subject to equitable tolling, see Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), or as a substantive requirement subject perhaps to equitable estoppel, see Office of Personnel Management v. Richmond, 496 U.S. 414, 419-424 (1990), the District Courts needed some special reason to exercise that equitable power against the United States. The only reason respondents adduce is supposed "affirmative misconduct" by the INS. See Irwin, supra, at 96 ("We have allowed equitable tolling in situations . . . where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass"); Richmond, supra, at 421 ("Our own opinions have continued to mention the possibility, in the course of rejecting estoppel arguments, that some type of `affirmative misconduct' might give rise to estoppel against the Government"). Respondents argue that the INS engaged in "affirmative misconduct" by promulgating the invalid regulations, which deterred aliens who were ineligible under those regulations from applying for legalization. See Plaintiffs' Submission Re Availability of Remedies for the Plaintiff Class in CSS, pp. 6-15 (Record, Doc. No. 164), Plaintiffs' Memorandum on Remedies in LULAC (Record, Doc. No. 40). The District Courts essentially accepted the argument, ordering remedies coextensive with the INS' supposed "misconduct." The CSS court extended the application period for those class members who "knew of [the INS'] unlawful regulation and thereby concluded that they were ineligible for legalization and by reason of that conclusion did not file an application," App. to Pet. for Cert. 25a; the LULAC court provided an almost identical remedy, see id., at 59a. I cannot agree that a benefit-conferring agency commits "affirmative misconduct," sufficient to justify an equitable extension of the statutory time period for application, simply *76 by promulgating a regulation that incorrectly specifies the eligibility criteria for the benefit. When Congress passes a benefits statute that includes a time period, it has two goals. It intends both that eligible claimants receive the benefit and that they promptly assert their claims. The broad definition of "misconduct" that respondents propose would give the first goal absolute priority over the second, but I would not presume that Congress intends such a prioritization. Rather, absent evidence to the contrary, Congress presumably intends that the two goals be harmonized as best possible, by requiring would-be beneficiaries to make a timely application and concurrently to contest the invalid regulation. "We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Irwin, supra, at 96. The broad equitable remedy entered by the District Courts in these cases is contrary to Congress' presumptive intent in the Reform Act, and thus is error. "`Courts of equity can no more disregard statutory . . . requirements and provisions than can courts of law.'" INS v. Pangilinan, 486 U.S. 875, 883 (1988) (quoting Hedges v. Dixon County, 150 U.S. 182, 192 (1893)). I therefore agree with the Court that the District Courts' orders extending the application period must be vacated. I also agree that "front-desked" aliens already have "applied" within the meaning of § 1255a(a)(1)(A). See ante, at 67, n. 29. On remand, respondents may be able to demonstrate particular instances of "misconduct" by the INS, beyond the promulgation of the invalid regulations, that might perhaps justify an extension for certain members of the LULAC class or the CSS class. See Brief for Respondents 16-20, 35-42. I would not preclude the possibility of a narrower order requiring the INS to adjudicate the applications of both "frontdesked" aliens and some aliens who were not "front-desked," but neither would I endorse that possibility, because at this *77 point respondents have made only the most general suggestions of "misconduct."

I agree that the District Courts in these two cases, Reno v. Catholic Social Services, Inc. (CSS), and INS v. League of United Latin American Citizens (LULAC), erred in extending the application period for legalization beyond May 4, 1988, the end of the 12-month interval specified by the Immigration Reform and Control Act of 1986. I would not, however, reach this result on ripeness grounds. The Court holds that a member of the plaintiff class in CSS or LULAC who failed to apply to the INS during the 12-month period does not now have a ripe claim to extend the application deadline. In my view, that claim became ripe after May 4, 1988, even if it was not ripe before. The claim may well lack merit, but it is no longer premature. The Court of Appeals did not consider the problem of ripeness, and the submissions to this Court have not discussed *68 that problem except in passing. See Pet. for Cert. 11, n. 13; Brief for Petitioners 20; Brief for Respondents 17, n. 23. Rather, certiorari was granted on two questions, to which the parties rightly have adhered: first, whether the District Courts had jurisdiction under 8 U.S. C. 1255a(f), the judicial-review provision of Title II of the Reform Act; and second, whether the courts properly extended the application period. See Pet. for Cert. i. The Court finds the jurisdictional challenge meritless under see ante, at 53-56, as do I. But instead of proceeding to consider the second question presented, the Court sua sponte attempts to resolve the case on ripeness grounds. It reaches out to hold that "the promulgation of the challenged regulations did not itself give each CSS and LULAC class member a ripe claim; a class member's claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him." Ante, at 59. This is new and, in my view, incorrect law. Moreover, even if it is correct, the new ripeness doctrine propounded by the Court is irrelevant to the case at hand. Our prior cases concerning anticipatory challenges to agency rules do not specify when an anticipatory suit may be brought against a benefit-conferring rule, such as the INS regulations here. An anticipatory suit by a would-be beneficiary, who has not yet applied for the benefit that the rule denies him, poses different ripeness problems than a preenforcement suit against a duty-creating rule, see Abbott Even if he succeeds in his anticipatory action, the would-be beneficiary will not receive the benefit until he actually applies for it; and the agency might then deny him the benefit on grounds other than his ineligibility under the rule. By contrast, a successful suit against the duty-creating rule will relieve the plaintiff immediately of a burden that he otherwise would bear. *69 Yet I would not go so far as to state that a suit challenging a benefit-conferring rule is necessarily unripe simply because the plaintiff has not yet applied for the benefit. "Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Regional Rail Reorganization Act Cases, If it is "inevitable" that the challenged rule will "operat[e]" to the plaintiff's disadvantage—if the court can make a firm prediction that the plaintiff will apply for the benefit, and that the agency will deny the application by virtue of the rule—then there may well be a justiciable controversy that the court may find prudent to resolve. I do not mean to suggest that a simple anticipatory challenge to the INS regulations would be ripe under the approach I propose. Cf. ante, at 58-59, n. 19. That issue need not be decided because, as explained below, these cases are not a simple anticipatory challenge. See infra, at 71-74. My intent is rather to criticize the Court's reasoning—its reliance on a categorical rule that would-be beneficiaries cannot challenge benefit-conferring regulations until they apply for benefits. Certainly the line of cases beginning with Abbott Laboratories does not support this categorical approach. That decision itself discusses with approval an earlier case that involved an anticipatory challenge to a benefit-conferring rule. "[I]n United the Court held to be a final agency action an FCC regulation announcing a Commission policy that it would not issue a television license to an applicant already owning five such licenses, even though no spe- cific application was before the Commission." *70 More recently, in the Court held that a facial challenge to the variance provision of an EPA pollution-control regulation was ripe even "prior to application of the regulation to a particular [company's] request for a variance." And in Pacific & Elec. the Court permitted utilities to challenge a state law imposing a moratorium on the certification of nuclear power plants, even though the utilities had not yet applied for a certificate. See To be sure, all of these decisions involved licenses, certificates, or variances, which exempt the bearer from otherwise-applicable duties; but the same is true of the instant cases. The benefit conferred by the Reform Act—an adjustment in status to lawful temporary resident alien, see 8 U.S. C. 1255a(a)—readily can be conceptualized as a "license" or "certificate" to remain in the United States, or a "variance" from the immigration laws. As for the Court there stated: "Absent [explicit statutory authorization for immediate judicial review], a regulation is not ordinarily considered the type of agency action `ripe' for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is `ripe' for review at once, whether or not explicit statutory review apart from the APA is provided.)" *71 This language does not suggest that an anticipatory challenge to a benefit-conferring rule will of necessity be constitutionally unripe, for otherwise an "explicit statutory review" provision would not help cure the ripeness problem. Rather, Lujan points to the prudential considerations that weigh in the ripeness calculus: the need to "fles[h] out" the controversy and the burden on the plaintiff who must "adjust his conduct immediately." These are just the kinds of factors identified in the two-part, prudential test for ripeness that Abbott Laboratories articulated. "The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." See ; Pacific ; National Crushed At the very least, where the challenge to the benefit-conferring rule is purely legal, and where the plaintiff will suffer hardship if he cannot raise his challenge until later, a justiciable, anticipatory challenge to the rule may well be ripe in the prudential sense. Thus I cannot agree with the Court that ripeness will never obtain until the plaintiff actually applies for the benefit. But this new rule of ripeness law, even if correct, is irrelevant here. These cases no longer fall in the above-described category of anticipatory actions, where a would-be beneficiary simply seeks to invalidate a benefit-conferring rule before he applies for benefits. As the cases progressed in the District Courts, respondents amended their complaints to request an additional remedy beyond the invalidation of the INS regulations: an extension of the 12-month application period. Compare Sixth Amended Complaint in CSS (Record, Doc. No. 140) and First Amended Complaint in LULAC (Record, Doc. No. 56) with Third Amended Complaint in CSS (Record, Doc. No. 69) and Complaint in LULAC (Record, *72 Doc. No. 1). That period expired on May 4, 1988, and the District Courts thereafter granted an extension. See App. to Pet. for Cert. 22a—28a, 50a—60a The only issue before us is whether these orders should have been entered. See ante, at 48-49, 52-53. Even if the Court is correct that a plaintiff cannot seek to invalidate an agency's benefit-conferring rule before applying to the agency for the benefit, it is a separate question whether the would-be beneficiary must make the wholly futile gesture of submitting an application when the application period has expired and he is seeking to extend it. In the instant cases, I do not see why a class member who failed to apply to the INS within the 12-month period lacks a ripe claim to extend the application deadline, now that the period actually has expired. If Congress in the Reform Act had provided for an 18-month application period, and the INS had closed the application period after only 12 months, no one would argue that court orders extending the period for 6 more months should be vacated on ripeness grounds. The orders actually before us are not meaningfully distinguishable. Of course, respondents predicate their argument for extending the period on the invalidity of the INS regulations, see infra, at 75-77, not on a separate statutory provision governing the length of the period, but this difference does not change the ripeness calculus. The "basic rationale" behind our ripeness doctrine "is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements," when those "disagreements" are premised on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Union Carbide, There is no contingency to the closing of the 12-month application period. It is certain that an alien who now applies to the INS for legalization will be denied that benefit because the period has closed. Nor does prudence justify this Court in postponing an alien's claim to extend the period, since that *73 claim is purely legal and since a delayed opportunity to seek legalization will cause grave uncertainty. The Court responds to this point by reiterating that class members who failed to apply to the INS have not yet suffered a "concrete" injury, because the INS has not denied them legalization by virtue of the challenged regulations. See ante, at 59-60, n. 20. At present, however, class members are seeking to redress a different, and logically prior, injury: the denial of the very opportunity to apply for legalization. The Court's ripeness analysis focuses on the wrong question: whether "the promulgation of the challenged regulations [gave] each CSS and LULAC class member a ripe claim." Ante, at 59 But the question is not whether the class members' claims were ripe at the inception of these suits, when respondents were seeking simply to invalidate the INS regulations and the 12-month application period had not yet closed. Whatever the initial status of those claims, they became ripe once the period had in fact closed and respondents had amended their complaints to seek an extension. In the Regional Rail Reorganization Act Cases, this Court held that "since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court's decision that must govern." Accord, Similarly, in the cases before us, it is the situation now (and, as it happens, at the time of the District Courts' orders), rather than at the time of the initial complaints, that must govern. The Court also suggests that respondents' claim to extend the application period may well be "flatly" barred by 8 U.S. C. 1255a(f)(2), which provides: "No denial of adjustment of status [under Title II of the Reform Act] based on a late filing of an application for such adjustment may be reviewed by [any] court" See ante, at 60, n. 20. I find it remarkable that the Court might construe 1255a(f)(2) as barring any suit seeking to extend the application deadline *74 set by the INS, while at the same time interpreting 1255a(f)(1) not to bar respondents' substantive challenge to the INS regulations, see ante, at 53-56. As the INS itself observes, the preclusive language in 1255a(f)(1) is "broader" than in 1255a(f)(2), because the latter provision uses the word "denial" instead of "determination." See Brief for Petitioners 19. If Congress in the Reform Act had provided for an 18-month application period, and the INS had closed the period after only 12 months, I cannot believe that 1255a(f)(2) would preclude a suit seeking to extend the period by 6 months. Nor do I think that 1255a(f)(2) bars respondents' claim to extend the period, because that claim is predicated on their substantive challenge to the INS regulations, which in turn is permitted by 1255a(f)(1). In any event, 1255a(f)(2) concerns reviewability, not ripeness; whether or not that provision precludes the instant actions, the Court's ripeness analysis remains misguided. Of course, the closing of the application period was not an unalloyed benefit for class members who had failed to apply. After May 4, 1988, those aliens had ripe claims, but they also became statutorily ineligible for legalization. The Reform Act authorizes the INS to adjust the status of an illegal alien only if he "appl[ies] for such adjustment during the 12-month period beginning on a date designated by the Attorney General." 8 U.S. C. 1255a(a)(1)(A). As the INS rightly argues, this provision precludes the legalization of an alien who waited to apply until after the 12-month period had ended. The District Courts' orders extending the application period were not unripe, either constitutionally or prudentially, but they were impermissible under the Reform Act. "A court is no more authorized to overlook the valid [requirement] that applications be [submitted] than it is to overlook any other valid requirement for the receipt of benefits." *75 Respondents assert that equity requires an extension of the time limit imposed by 1255a(a)(1)(A). Whether that provision is seen as a limitations period subject to equitable tolling, see or as a substantive requirement subject perhaps to equitable estoppel, see Office of Personnel the District Courts needed some special reason to exercise that equitable power against the United States. The only reason respondents adduce is supposed "affirmative misconduct" by the INS. See ; Respondents argue that the INS engaged in "affirmative misconduct" by promulgating the invalid regulations, which deterred aliens who were ineligible under those regulations from applying for legalization. See Plaintiffs' Submission Re Availability of Remedies for the Plaintiff Class in CSS, pp. 6-15 (Record, Doc. No. 164), Plaintiffs' Memorandum on Remedies in LULAC (Record, Doc. No. 40). The District Courts essentially accepted the argument, ordering remedies coextensive with the INS' supposed "misconduct." The CSS court extended the application period for those class members who "knew of [the INS'] unlawful regulation and thereby concluded that they were ineligible for legalization and by reason of that conclusion did not file an application," App. to Pet. for Cert. 25a; the LULAC court provided an almost identical remedy, see at 59a. I cannot agree that a benefit-conferring agency commits "affirmative misconduct," sufficient to justify an equitable extension of the statutory time period for application, simply *76 by promulgating a regulation that incorrectly specifies the eligibility criteria for the benefit. When Congress passes a benefits statute that includes a time period, it has two goals. It intends both that eligible claimants receive the benefit and that they promptly assert their claims. The broad definition of "misconduct" that respondents propose would give the first goal absolute priority over the second, but I would not presume that Congress intends such a prioritization. Rather, absent evidence to the contrary, Congress presumably intends that the two goals be harmonized as best possible, by requiring would-be beneficiaries to make a timely application and concurrently to contest the invalid regulation. "We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." The broad equitable remedy entered by the District Courts in these cases is contrary to Congress' presumptive intent in the Reform Act, and thus is error. "`Courts of equity can no more disregard statutory requirements and provisions than can courts of law.'" I therefore agree with the Court that the District Courts' orders extending the application period must be vacated. I also agree that "front-desked" aliens already have "applied" within the meaning of 1255a(a)(1)(A). See ante, at 67, n. 29. On remand, respondents may be able to demonstrate particular instances of "misconduct" by the INS, beyond the promulgation of the invalid regulations, that might perhaps justify an extension for certain members of the LULAC class or the CSS class. See Brief for Respondents 16-20, 35-42. I would not preclude the possibility of a narrower order requiring the INS to adjudicate the applications of both "frontdesked" aliens and some aliens who were not "front-desked," but neither would I endorse that possibility, because at this *77 point respondents have made only the most general suggestions of "misconduct."

Justice Burger

majority

United States v. Washington

https://www.courtlistener.com/opinion/109659/united-states-v-washington/

https://www.courtlistener.com/api/rest/v3/clusters/109659/

1976-106

The question presented in this case is whether testimony given by a grand jury witness suspected of wrongdoing may be used against him in a later prosecution for a substantive criminal offense when the witness was not informed in advance of his testimony that he was a potential defendant in danger of indictment.[1] (1) The facts are not in dispute. Zimmerman and Woodard were driving respondent's van truck when a Washington, D. C., policeman stopped them for a traffic offense. Seeing a motorcycle in the rear of the van which he identified as stolen, the officer arrested both men and impounded respondent's vehicle. When respondent came to reclaim the van, he told police that Zimmerman and Woodard were friends who were driving the van with his permission. He explained the presence of the stolen motorcycle by saying that while driving the van himself he had stopped to assist an unknown motorcyclist whose machine had broken down. Respondent then allowed the motorcycle to be placed in his van to take it for repairs. Soon after this the van stalled and he walked to a nearby gasoline station to call Zimmerman and Woodard for help, leaving the van with the unknown *183 motorcyclist. After reaching Zimmerman by phone, respondent waited at the gasoline station for his friends, then returned to the spot he had left the van when they failed to appear; by that time the van had disappeared. Respondent said he was not alarmed, assuming his friends had repaired the van and driven it away. Shortly thereafter, Zimmerman and Woodard were arrested with the stolen motorcycle in the van. Not surprisingly, the officer to whom respondent related this tale was more than a little skeptical; he told respondent he did not believe his story, and advised him not to repeat it in court, "because you're liable to be in trouble if you [do so]." The officer also declined to release the van. Respondent then repeated this story to an Assistant United States Attorney working on the case. The prosecutor, too, was dubious of the account; nevertheless, he released the van to respondent. At the same time, he served respondent with a subpoena to appear before the grand jury investigating the motorcycle theft. When respondent appeared before the grand jury, the Assistant United States Attorney in charge had not yet decided whether to seek an indictment against him. The prosecutor was aware of respondent's explanation, and was also aware of the possibility that respondent could be indicted by the grand jury for the theft if his story was not believed. The prosecutor did not advise respondent before his appearance that he might be indicted on a criminal charge in connection with the stolen motorcycle. But respondent, after reciting the usual oath to tell the truth, was given a series of other warnings, as follows: "Q . . . . "You have a right to remain silent. You are not required to say anything to us in this Grand Jury at any time or to answer any question.[2] *184 "Anything you say can be used against you in Court. "You have the right to talk to a lawyer for advice before we question you and have him outside the Grand Jury during any questioning. "If you cannot afford a lawyer and want one a lawyer will be provided for you. "If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. "You also have the right to stop answering at any time until you talk to a lawyer. "Now, do you understand those rights, sir? "A Yes, I do. "Q And do you want to answer questions of the Grand Jury in reference to a stolen motorcycle that was found in your truck? "A Yes, sir. "Q And do you want a lawyer here or outside the Grand Jury room while you answer those questions? "A No, I don't think so." In response to questions, respondent again related his version of how the stolen motorcycle came to be in the rear of his van. Subsequently, the grand jury indicted respondent, Zimmerman, and Woodard for grand larceny and receiving stolen property. Respondent moved to suppress his testimony and quash the indictment, arguing that it was based on evidence obtained in violation of his Fifth Amendment privilege against compelled self-incrimination. The Superior Court for the District of *185 Columbia suppressed the testimony and dismissed the indictment, holding that before the Government could use respondent's grand jury testimony at trial, it had first to demonstrate that respondent had knowingly waived his privilege against compelled self-incrimination. Notwithstanding the comprehensive warnings described earlier, the court found no effective waiver had been made, holding that respondent was not properly advised of his Fifth Amendment rights. The court thought the Constitution required, at a minimum, that "inquiry be made of the suspect to determine what his educational background is, and what his formal education is and whether or not he understands that this is a constitutional privilege and whether he fully understands the consequences of what might result in the event that he does waive his constitutional right and in the event that he does make incriminatory statements . . . ." The court also held that respondent should have been told that his testimony could lead to his indictment by the grand jury before which he was testifying, and could then be used to convict him in a criminal prosecution. The District of Columbia Court of Appeals affirmed the suppression order. 328 A.2d 98 (1974).[3] That court also took the position that "the most significant failing of the prosecutor was in not advising [respondent] that he was a potential defendant. Another shortcoming was in the prosecutor's waiting until after administering the oath in the cloister *186 of the grand jury before undertaking to furnish what advice was given." Id., at 100.[4] (2) The implicit premise of the District of Columbia Court of Appeals' holding is that a grand jury inquiry, like police custodial interrogation, is an "interrogation of persons suspected or accused of crime [that] contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. 436, 467 (1966). But this Court has not decided that the grand jury setting presents coercive elements which compel witnesses to incriminate themselves. Nor have we decided whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses; moreover, we have no occasion to decide these matters today, for even assuming that the grand jury setting exerts some pressures on witnesses generally or on those who may later be indicted, the comprehensive warnings respondent received in this case plainly satisfied any possible claim to warnings. Accordingly, respondent's grand jury testimony may properly be used against him in a subsequent trial for theft of the motorcycle. Although it is well settled that the Fifth Amendment privilege extends to grand jury proceedings, Counselman v. Hitchcock, 142 U.S. 547 (1892), it is also axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. "It does not preclude *187 a witness from testifying voluntarily in matters which may incriminate him," United States v. Monia, 317 U.S. 424, 427 (1943), for "those competent and freewilled to do so may give evidence against the whole world, themselves included." United States v. Kimball, 117 F. 156, 163 (CC SDNY 1902); accord, Miranda, supra, at 478; Michigan v. Tucker, 417 U.S. 433 (1974); Hoffa v. United States, 385 U.S. 293 (1966). Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a "genuine compulsion of testimony." Michigan v. Tucker, supra, at 440. Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, respondent's incriminating testimony cannot conflict with any constitutional guarantees of the privilege.[5] The Constitution does not prohibit every element which influences a criminal suspect to make incriminating admissions. See Garner v. United States, 424 U.S. 648 (1976), Beckwith v. United States, 425 U.S. 341 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 223-227 (1973). Of course, for many witnesses the grand jury room engenders an atmosphere conducive to truthtelling, for it is likely that upon being brought *188 before such a body of neighbors and fellow citizens, and having been placed under a solemn oath to tell the truth, many witnesses will feel obliged to do just that. But it does not offend the guarantees of the Fifth Amendment if in that setting a witness is more likely to tell the truth than in less solemn surroundings. The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. Rogers v. Richmond, 365 U.S. 534, 544 (1961). (3) After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness' misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United States v. Binder, 453 F.2d 805, 810 (CA2 1971), cert. denied, 407 U.S. 920 (1972). Respondent points out that unlike one subject to custodial interrogation, whose arrest should inform him only too clearly that he is a potential criminal defendant, a grand jury witness *189 may well be unaware that he is targeted for possible prosecution. While this may be so in some situations, it is an overdrawn generalization. In any case, events here clearly put respondent on notice that he was a suspect in the motorcycle theft. He knew that the grand jury was investigating that theft and that his involvement was known to the authorities. Respondent was made abundantly aware that his exculpatory version of events had been disbelieved by the police officer, and that his friends, whose innocence his own story supported, were to be prosecuted for the theft. The interview with the prosecutor put him on additional notice that his implausible story was not accepted as true. The warnings he received in the grand jury room served further to alert him to his own potential criminal liability. In sum, by the time he testified respondent knew better than anyone else of his potential defendant status. However, all of this is largely irrelevant, since we do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights. Respondent suggests he must prevail under Garner v. United States, supra. There, the petitioner was charged with a gambling conspiracy. As part of its case, the Government introduced Garner's income tax returns, in one of which he had identified his occupation as "professional gambler," and in all of which he had reported substantial income from wagering. The Court recognized that Garner was indeed compelled by law to file a tax return, but held that this did not *190 constitute compelled self-incrimination. The Court noted that Garner did not claim his Fifth Amendment privilege, instead making the incriminating disclosure that he was a professional gambler. Garner holds that the Self-Incrimination Clause is violated only when the Government compels disclosures which it knows will incriminate the declarant —that is, only when it intentionally places the individual under "compulsions to incriminate, not merely compulsions to make unprivileged disclosures." 424 U.S., at 657. But the distinction between compulsion to incriminate and compulsion to disclose what the Government is entitled to know is of no help to respondent; in this case there was no compulsion to do either. In Beckwith v. United States, decided shortly after Garner, we reaffirmed the need for showing overbearing compulsion as a prerequisite to a Fifth Amendment violation. There, the Government agent interrogated the taxpayer for the explicit purpose of securing information that would incriminate him. There, as here, the interrogation was not conducted in an inherently coercive setting; hence the claim of compelled self-incrimination was rejected.[6] (4) Since warnings were given, we are not called upon to decide whether such warnings were constitutionally required. However, *191 the District of Columbia Court of Appeals held that whatever warnings are required are insufficient if given "in the cloister of the grand jury." 328 A.2d, at 100. That court gave no reason for its view that warnings must be given outside the presence of the jury, but respondent now advances two justifications. First, it could be thought that warnings given to respondent before the grand jury came too late, because of the short time to assimilate their significance, and because of the presence of the grand jurors. But respondent does not contend that he did not understand the warnings given here. In any event, it is purely speculative to attribute any such effects to warnings given in the presence of the jury immediately before taking the stand. If anything, the proximity of the warnings to respondent's testimony and the solemnity of the grand jury setting seem likely to increase their effectiveness. Second, respondent argues that giving the oath in the presence of the grand jury undermines assertion of the Fifth Amendment privilege by placing the witness in fear that the grand jury will infer guilt from invocation of the privilege. But this argument entirely overlooks that the grand jury's historic role is as an investigative body; it is not the final arbiter of guilt or innocence. Moreover, it is well settled that invocation of the Fifth Amendment privilege in a grand jury proceeding is not admissible in a criminal trial, where guilt or innocence is actually at stake. The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE BRENNAN, with whom MR.

The question presented in this case is whether testimony given by a grand jury witness suspected of wrongdoing may be used against him in a later prosecution for a substantive criminal offense when the witness was not informed in advance of his testimony that he was a potential defendant in danger of indictment.[1] (1) The facts are not in dispute. Zimmerman and Woodard were driving respondent's van truck when a Washington, D. C., policeman stopped them for a traffic offense. Seeing a motorcycle in the rear of the van which he identified as stolen, the officer arrested both men and impounded respondent's vehicle. When respondent came to reclaim the van, he told police that Zimmerman and Woodard were friends who were driving the van with his permission. He explained the presence of the stolen motorcycle by saying that while driving the van himself he had stopped to assist an unknown motorcyclist whose machine had broken down. Respondent then allowed the motorcycle to be placed in his van to take it for repairs. Soon after this the van stalled and he walked to a nearby gasoline station to call Zimmerman and Woodard for help, leaving the van with the unknown *183 motorcyclist. After reaching Zimmerman by phone, respondent waited at the gasoline station for his friends, then returned to the spot he had left the van when they failed to appear; by that time the van had disappeared. Respondent said he was not alarmed, assuming his friends had repaired the van and driven it away. Shortly thereafter, Zimmerman and Woodard were arrested with the stolen motorcycle in the van. Not surprisingly, the officer to whom respondent related this tale was more than a little skeptical; he told respondent he did not believe his story, and advised him not to repeat it in court, "because you're liable to be in trouble if you [do so]." The officer also declined to release the van. Respondent then repeated this story to an Assistant United Attorney working on the case. The prosecutor, too, was dubious of the account; nevertheless, he released the van to respondent. At the same time, he served respondent with a subpoena to appear before the grand jury investigating the motorcycle theft. When respondent appeared before the grand jury, the Assistant United Attorney in charge had not yet decided whether to seek an indictment against him. The prosecutor was aware of respondent's explanation, and was also aware of the possibility that respondent could be indicted by the grand jury for the theft if his story was not believed. The prosecutor did not advise respondent before his appearance that he might be indicted on a criminal charge in connection with the stolen motorcycle. But respondent, after reciting the usual oath to tell the truth, was given a series of other warnings, as follows: "Q "You have a right to remain silent. You are not required to say anything to us in this Grand Jury at any time or to answer any question.[2] *184 "Anything you say can be used against you in Court. "You have the right to talk to a lawyer for advice before we question you and have him outside the Grand Jury during any questioning. "If you cannot afford a lawyer and want one a lawyer will be provided for you. "If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. "You also have the right to stop answering at any time until you talk to a lawyer. "Now, do you understand those rights, sir? "A Yes, I do. "Q And do you want to answer questions of the Grand Jury in reference to a stolen motorcycle that was found in your truck? "A Yes, sir. "Q And do you want a lawyer here or outside the Grand Jury room while you answer those questions? "A No, I don't think so." In response to questions, respondent again related his version of how the stolen motorcycle came to be in the rear of his van. Subsequently, the grand jury indicted respondent, Zimmerman, and Woodard for grand larceny and receiving stolen property. Respondent moved to suppress his testimony and quash the indictment, arguing that it was based on evidence obtained in violation of his Fifth Amendment privilege against compelled self-incrimination. The Superior Court for the District of *185 Columbia suppressed the testimony and dismissed the indictment, holding that before the Government could use respondent's grand jury testimony at trial, it had first to demonstrate that respondent had knowingly waived his privilege against compelled self-incrimination. Notwithstanding the comprehensive warnings described earlier, the court found no effective waiver had been made, holding that respondent was not properly advised of his Fifth Amendment rights. The court thought the Constitution required, at a minimum, that "inquiry be made of the suspect to determine what his educational background is, and what his formal education is and whether or not he understands that this is a constitutional privilege and whether he fully understands the consequences of what might result in the event that he does waive his constitutional right and in the event that he does make incriminatory statements" The court also held that respondent should have been told that his testimony could lead to his indictment by the grand jury before which he was testifying, and could then be used to convict him in a criminal prosecution. The District of Columbia Court of Appeals affirmed the suppression order.[3] That court also took the position that "the most significant failing of the prosecutor was in not advising [respondent] that he was a potential defendant. Another shortcoming was in the prosecutor's waiting until after administering the oath in the cloister *186 of the grand jury before undertaking to furnish what advice was given."[4] (2) The implicit premise of the District of Columbia Court of Appeals' holding is that a grand jury inquiry, like police custodial interrogation, is an "interrogation of persons suspected or accused of crime [that] contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." But this Court has not decided that the grand jury setting presents coercive elements which compel witnesses to incriminate themselves. Nor have we decided whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses; moreover, we have no occasion to decide these matters today, for even assuming that the grand jury setting exerts some pressures on witnesses generally or on those who may later be indicted, the comprehensive warnings respondent received in this case plainly satisfied any possible claim to warnings. Accordingly, respondent's grand jury testimony may properly be used against him in a subsequent trial for theft of the motorcycle. Although it is well settled that the Fifth Amendment privilege extends to grand jury proceedings, it is also axiomatic that the Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. "It does not preclude *187 a witness from testifying voluntarily in matters which may incriminate him," United for "those competent and freewilled to do so may give evidence against the whole world, themselves included." United ; accord, ; ; Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a "genuine compulsion of testimony." Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. Accordingly, unless the record reveals some compulsion, respondent's incriminating testimony cannot conflict with any constitutional guarantees of the privilege.[5] The Constitution does not prohibit every element which influences a criminal suspect to make incriminating admissions. See ; Of course, for many witnesses the grand jury room engenders an atmosphere conducive to truthtelling, for it is likely that upon being brought *188 before such a body of neighbors and fellow citizens, and having been placed under a solemn oath to tell the truth, many witnesses will feel obliged to do just that. But it does not offend the guarantees of the Fifth Amendment if in that setting a witness is more likely to tell the truth than in less solemn surroundings. The constitutional guarantee is only that the witness be not compelled to give self-incriminating testimony. The test is whether, considering the totality of the circumstances, the free will of the witness was overborne. (3) After being sworn, respondent was explicitly advised that he had a right to remain silent and that any statements he did make could be used to convict him of crime. It is inconceivable that such a warning would fail to alert him to his right to refuse to answer any question which might incriminate him. This advice also eliminated any possible compulsion to self-incrimination which might otherwise exist. To suggest otherwise is to ignore the record and reality. Indeed, it seems self-evident that one who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled. Moreover, any possible coercion or unfairness resulting from a witness' misimpression that he must answer truthfully even questions with incriminatory aspects is completely removed by the warnings given here. Even in the presumed psychologically coercive atmosphere of police custodial interrogation, does not require that any additional warnings be given simply because the suspect is a potential defendant; indeed, such suspects are potential defendants more often than not. United cert. denied, Respondent points out that unlike one subject to custodial interrogation, whose arrest should inform him only too clearly that he is a potential criminal defendant, a grand jury witness *189 may well be unaware that he is targeted for possible prosecution. While this may be so in some situations, it is an overdrawn generalization. In any case, events here clearly put respondent on notice that he was a suspect in the motorcycle theft. He knew that the grand jury was investigating that theft and that his involvement was known to the authorities. Respondent was made abundantly aware that his exculpatory version of events had been disbelieved by the police officer, and that his friends, whose innocence his own story supported, were to be prosecuted for the theft. The interview with the prosecutor put him on additional notice that his implausible story was not accepted as true. The warnings he received in the grand jury room served further to alert him to his own potential criminal liability. In sum, by the time he testified respondent knew better than anyone else of his potential defendant status. However, all of this is largely irrelevant, since we do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights. Respondent suggests he must prevail under There, the petitioner was charged with a gambling conspiracy. As part of its case, the Government introduced Garner's income tax returns, in one of which he had identified his occupation as "professional gambler," and in all of which he had reported substantial income from wagering. The Court recognized that Garner was indeed compelled by law to file a tax return, but held that this did not *190 constitute compelled self-incrimination. The Court noted that Garner did not claim his Fifth Amendment privilege, instead making the incriminating disclosure that he was a professional gambler. Garner holds that the Self-Incrimination Clause is violated only when the Government compels disclosures which it knows will incriminate the declarant —that is, only when it intentionally places the individual under "compulsions to incriminate, not merely compulsions to make unprivileged disclosures." But the distinction between compulsion to incriminate and compulsion to disclose what the Government is entitled to know is of no help to respondent; in this case there was no compulsion to do either. In decided shortly after Garner, we reaffirmed the need for showing overbearing compulsion as a prerequisite to a Fifth Amendment violation. There, the Government agent interrogated the taxpayer for the explicit purpose of securing information that would incriminate him. There, as here, the interrogation was not conducted in an inherently coercive setting; hence the claim of compelled self-incrimination was rejected.[6] (4) Since warnings were given, we are not called upon to decide whether such warnings were constitutionally required. However, *191 the District of Columbia Court of Appeals held that whatever warnings are required are insufficient if given "in the cloister of the grand jury." 328 A.2d, That court gave no reason for its view that warnings must be given outside the presence of the jury, but respondent now advances two justifications. First, it could be thought that warnings given to respondent before the grand jury came too late, because of the short time to assimilate their significance, and because of the presence of the grand jurors. But respondent does not contend that he did not understand the warnings given here. In any event, it is purely speculative to attribute any such effects to warnings given in the presence of the jury immediately before taking the stand. If anything, the proximity of the warnings to respondent's testimony and the solemnity of the grand jury setting seem likely to increase their effectiveness. Second, respondent argues that giving the oath in the presence of the grand jury undermines assertion of the Fifth Amendment privilege by placing the witness in fear that the grand jury will infer guilt from invocation of the privilege. But this argument entirely overlooks that the grand jury's historic role is as an investigative body; it is not the final arbiter of guilt or innocence. Moreover, it is well settled that invocation of the Fifth Amendment privilege in a grand jury proceeding is not admissible in a criminal trial, where guilt or innocence is actually at stake. The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE BRENNAN, with whom MR.

Justice Douglas

dissenting

Muniz v. Hoffman

https://www.courtlistener.com/opinion/109300/muniz-v-hoffman/

https://www.courtlistener.com/api/rest/v3/clusters/109300/

1974-139

I I believe that petitioners are entitled to trial by jury under 18 U.S. C. § 3692, which provides that, with certain exceptions not here material: "In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury . . . ." In enacting this language in 1948, Congress reaffirmed the purpose originally expressed in § 11 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U.S. C. § 111 (1946 ed.). That Act was intended to shield the organized labor movement from the intervention of a federal judiciary perceived by some as hostile to labor. The Act severely constrained the power of a federal court to issue an injunction against any person "participating or interested in a labor dispute." Section 11 provided for trial by jury in "all cases arising under this Act in which a person shall be charged with contempt." In the context of the case now before us, I view this section as affording, at the very least, a jury trial in any criminal contempt proceeding involving an alleged violation of an injunction issued against a participant in a "labor dispute." Any such injunction issued by a federal court was one "arising under" the Act, for it could have been issued only in accordance with the Act's prescriptions.[1] The evident congressional intent was to provide *479 for the interposition of a jury when disobedience of such an injunction was alleged.[2] For the reasons stated by MR. JUSTICE STEWART, post, at 485-486. I am persuaded that §§ 10 (h) and 10 (l) of the National Labor Relations Act made inapplicable only the anti-injunction provisions of the Norris-LaGuardia Act and did not disturb § 11. The broad mandate of § 11, to afford trial by jury in a contempt proceeding involving an injunction issued in a labor dispute, was thus continued in § 3692.[3] See Green v. United States, 356 U.S. 165, 217 (1958) (Black. J., dissenting). II I would reverse the judgment against Local 70 on constitutional grounds.[4] Article III, § 2, of the Constitution provides that "[t]he Trial of all Crimes, except *480 in Cases of Impeachment, shall be by Jury . . . ." And the Sixth Amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." (Emphasis added.) The Court fails to give effect to this language when it declares that a $10,000 fine is not "of such magnitude that a jury should have been interposed to guard against bias or mistake." Ante, at 477. I have previously protested this Court's refusal to recognize a right to jury trial in cases where it deems an offense to be "petty."[5] But even the "petty offense" exception cannot justify today's result, for it is impossible fairly to characterize either the offense or its penalty as "petty."[6] Disobedience of an injunction obtained by the Board is hardly a transgression trivial by its nature; and the imposition of a $10,000 fine is not a matter most locals would take lightly. In any event, the Constitution deprives us of the power to grant or withhold trial by jury depending upon our assessment of the substantiality of the penalty. To the argument that the Framers could not have intended to provide trial by jury in cases involving only *481 "small" fines and imprisonment, the response of Justices McReynolds and Butler in District of Columbia v. Clawans, 300 U.S. 617, 633-634 (1937) (separate opinion), is apt: "In a suit at common law to recover above $20.00, a jury trial is assured. And to us, it seems improbable that while providing for this protection in such a trifling matter the framers of the Constitution intended that it might be denied where imprisonment for a considerable time or liability for fifteen times $20.00 confronts the accused." I would follow the clear command of Art. III and the Sixth Amendment and reverse the judgment as to Local 70. MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL and MR.

I I believe that petitioners are entitled to trial by jury under 18 U.S. C. 3692, which provides that, with certain exceptions not here material: "In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury" In enacting this language in 1948, Congress reaffirmed the purpose originally expressed in 11 of the Norris-LaGuardia Act, 29 U.S. C. 111 (1946 ed.). That Act was intended to shield the organized labor movement from the intervention of a federal judiciary perceived by some as hostile to labor. The Act severely constrained the power of a federal court to issue an injunction against any person "participating or interested in a labor dispute." Section 11 provided for trial by jury in "all cases arising under this Act in which a person shall be charged with contempt." In the context of the case now before us, I view this section as affording, at the very least, a jury trial in any criminal contempt proceeding involving an alleged violation of an injunction issued against a participant in a "labor dispute." Any such injunction issued by a federal court was one "arising under" the Act, for it could have been issued only in accordance with the Act's prescriptions.[1] The evident congressional intent was to provide *479 for the interposition of a jury when disobedience of such an injunction was alleged.[2] For the reasons stated by MR. JUSTICE STEWART, post, at 485-486. I am persuaded that 10 (h) and 10 (l) of the National Labor Relations Act made inapplicable only the anti-injunction provisions of the Norris-LaGuardia Act and did not disturb 11. The broad mandate of 11, to afford trial by jury in a contempt proceeding involving an injunction issued in a labor dispute, was thus continued in 3692.[3] See II I would reverse the judgment against Local 70 on constitutional grounds.[4] Article III, 2, of the Constitution provides that "[t]he Trial of all Crimes, except *480 in Cases of Impeachment, shall be by Jury" And the Sixth Amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" (Emphasis added.) The Court fails to give effect to this language when it declares that a $10,000 fine is not "of such magnitude that a jury should have been interposed to guard against bias or mistake." Ante, at 477. I have previously protested this Court's refusal to recognize a right to jury trial in cases where it deems an offense to be "petty."[5] But even the "petty offense" exception cannot justify today's result, for it is impossible fairly to characterize either the offense or its penalty as "petty."[6] Disobedience of an injunction obtained by the Board is hardly a transgression trivial by its nature; and the imposition of a $10,000 fine is not a matter most locals would take lightly. In any event, the Constitution deprives us of the power to grant or withhold trial by jury depending upon our assessment of the substantiality of the penalty. To the argument that the Framers could not have intended to provide trial by jury in cases involving only *481 "small" fines and imprisonment, the response of Justices McReynolds and Butler in District of is apt: "In a suit at common law to recover above $20.00, a jury trial is assured. And to us, it seems improbable that while providing for this protection in such a trifling matter the framers of the Constitution intended that it might be denied where imprisonment for a considerable time or liability for fifteen times $20.00 confronts the accused." I would follow the clear command of Art. III and the Sixth Amendment and reverse the judgment as to Local 70. MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL and MR.

Justice Stewart

majority

Philadelphia v. New Jersey

https://www.courtlistener.com/opinion/109916/philadelphia-v-new-jersey/

https://www.courtlistener.com/api/rest/v3/clusters/109916/

1977-134

A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . . ." In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution. I The statutory provision in question is ch. 363 of 1973 N. J. Laws, which took effect in early 1974. In pertinent part it provides: "No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner [of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and *619 welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State." N. J. Stat. Ann. § 13:1I-10 (West Supp. 1978).[1] As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State.[2] Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States. Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs' motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, *620 Hackensack Meadowlands Development Comm'n v. Municipal Sanitary Landfill Auth., 127 N. J. Super. 160, 316 A.2d 711, and reversed, 68 N. J. 451, 348 A.2d 505. It found that ch. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U.S. C. § 3251 et seq., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227. The plaintiffs then appealed to this Court.[3] After noting probable jurisdiction, 425 U.S. 910, and hearing oral argument, we remanded for reconsideration of the appellants' preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U.S. 141. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N. J. 562, 376 A.2d 888, and again we noted probable jurisdiction, 434 U.S. 964. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation.[4] The dispositive *621 question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.[5] II Before it addressed the merits of the appellants' claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is "commerce" at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset. The state court expressed the view that there may be two definitions of "commerce" for constitutional purposes. When relied on "to support some exertion of federal control or regulation," the Commerce Clause permits "a very sweeping concept" of commerce. 68 N. J., at 469, 348 A.2d, at 514. But when relied on "to strike down or restrict state legislation," that Clause and the term "commerce" have a "much more confined . . . reach." Ibid. The state court reached this conclusion in an attempt to *622 reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they "are not legitimate subjects of trade and commerce." Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489. These articles include items "which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption." Ibid. See also Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 525, and cases cited therein. The state court found that ch. 363 as narrowed by the state regulations, see n. 2, supra, banned only "those wastes which can[not] be put to effective use," and therefore those wastes were not commerce at all, unless "the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision." 68 N. J., at 468, 348 A.2d, at 514. We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles "are not legitimate subjects of trade and commerce," the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of "valueless" out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are *623 not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 802-814; Meat Drivers v. United States, 371 U.S. 94. III A Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention "because of their local character and their number and diversity." South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440. The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-538: "This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U. S. [511], 527, `what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.'" The opinions of the Court through the years have reflected an alertness to the evils of "economic isolation" and protectionism, while at the same time recognizing that incidental *624 burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. See, e. g., H. P. Hood & Sons, Inc., v. Du Mond, supra; Toomer v. Witsell, 334 U.S. 385, 403-406; Baldwin v. G. A. F. Seelig, Inc., supra; Buck v. Kuykendall, 267 U.S. 307, 315-316. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State's borders. Cf. Welton v. Missouri, 91 U.S. 275. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142: "Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." See also Raymond Motor Transportation, Inc. v. Rice, supra, at 441-442; Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 352-354; Great A&P Tea Co. v. Cottrell, 424 U.S. 366, 371-372. The crucial inquiry, therefore, must be directed to determining whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental. *625 The purpose of ch. 363 is set out in the statute itself as follows: "The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited." The New Jersey Supreme Court accepted this statement of the state legislature's purpose. The state court additionally found that New Jersey's existing landfill sites will be exhausted within a few years; that to go on using these sites or to develop new ones will take a heavy environmental toll, both from pollution and from loss of scarce open lands; that new techniques to divert waste from landfills to other methods of disposal and resource recovery processes are under development, but that these changes will require time; and finally, that "the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes." 68 N. J., at 460-465, 348 A.2d, at 509-512. Based on these findings, the court concluded that ch. 363 was designed to protect, not the State's economy, but its environment, and that its substantial benefits outweigh its "slight" burden on interstate commerce. Id., at 471-478, 348 A.2d, at 515-519. The appellants strenuously contend that ch. 363, "while outwardly cloaked `in the currently fashionable garb of environmental *626 protection,' . . . is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents . . . ." They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: Stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites. The appellees, on the other hand, deny that ch. 363 was motivated by financial concerns or economic protectionism. In the words of their brief, "[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste." Noting that New Jersey landfill operators are among the plaintiffs, the appellee's brief argues that "[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large." This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against *627 articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. G. A. F. Seelig, Inc., 294 U. S., at 522-524; or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10; Johnson v. Haydel, 278 U.S. 16; Toomer v. Witsell, 334 U. S., at 403-404; or to preserve the State's financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U.S. 160, 173-174. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy. Also relevant here are the Court's decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders. West v. Kansas Natural Gas Co., 221 U.S. 229; Pennsylvania v. West Virginia, 262 U.S. 553. These cases stand for the basic principle that a "State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State."[6]Foster-Fountain Packing Co. v. Haydel, supra, at 10. *628 The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade. The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See Baldwin v. G. A. F. Seelig, Inc., supra, at 525; Bowman v. Chicago & Northwestern R. Co., 125 U. S., at 489. In the appellees' view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites. It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas, 209 U.S. 251; Reid v. Colorado, 187 U.S. 137; Bowman v. Chicago & Northwestern R. Co., supra, at 489. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon *629 as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin. The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey's remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution. Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. The judgment is Reversed. MR.

A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State" In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution. I The statutory provision in question is ch. 363 of 1973 N. J. Laws, which took effect in early 1974. In pertinent part it provides: "No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner [of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and *619 welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State." N. J. Stat. Ann. 13:1I- (West Supp. 1978).[1] As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State.[] Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States. Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs' motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, *60 Hackensack Meadowlands Development and reversed, 68 N. J. 451, It found that ch. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 4 U.S. C. 351 et seq., as amended by the Resource Recovery Act of 1970, The plaintiffs then appealed to this Court.[3] After noting probable jurisdiction, and hearing oral argument, we remanded for reconsideration of the appellants' preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N. J. 56, and again we noted probable jurisdiction, We agree with the New Jersey court that the state law has not been pre-empted by federal legislation.[4] The dispositive *61 question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.[5] II Before it addressed the merits of the appellants' claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is "commerce" at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset. The state court expressed the view that there may be two definitions of "commerce" for constitutional purposes. When relied on "to support some exertion of federal control or regulation," the Commerce Clause permits "a very sweeping concept" of commerce. 68 N. J., at But when relied on "to strike down or restrict state legislation," that Clause and the term "commerce" have a "much more confined reach." The state court reached this conclusion in an attempt to *6 reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they "are not legitimate subjects of trade and commerce." These articles include items "which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption." See also and cases cited therein. The state court found that ch. 363 as narrowed by the state regulations, see n. banned only "those wastes which can[not] be put to effective use," and therefore those wastes were not commerce at all, unless "the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision." 68 N. J., at 468, We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles "are not legitimate subjects of trade and commerce," the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of "valueless" out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are *63 not free from constitutional scrutiny when they restrict that movement. Cf. 46 U.S. 794, 80-814; Meat III A Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention "because of their local character and their number and diversity." South Carolina State Highway In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, 434 U.S. 49, The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H. P. Hood & Sons, 336 U.S. 537-538: "This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 94 U. S. [511], 57, `what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.'" The opinions of the Court through the years have reflected an alertness to the evils of "economic isolation" and protectionism, while at the same time recognizing that incidental *64 burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. See, e. g., H. P. Hood & Sons, v. Du ; 67 U.S. 307, The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State's borders. Cf. 91 U.S. 75. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, 14: "Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." See also Raymond Motor Transportation, at 441-44; 43 U.S. 333, 35-354; Great A&P Tea 44 U.S. 366, 371-37. The crucial inquiry, therefore, must be directed to determining whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental. *65 The purpose of ch. 363 is set out in the statute itself as follows: "The Legislature finds and determines that the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited." The New Jersey Supreme Court accepted this statement of the state legislature's purpose. The state court additionally found that New Jersey's existing landfill sites will be exhausted within a few years; that to go on using these sites or to develop new ones will take a heavy environmental toll, both from pollution and from loss of scarce open lands; that new techniques to divert waste from landfills to other methods of disposal and resource recovery processes are under development, but that these changes will require time; and finally, that "the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes." 68 N. J., at 460-465, 348 A.d, at 509-51. Based on these findings, the court concluded that ch. 363 was designed to protect, not the State's economy, but its environment, and that its substantial benefits outweigh its "slight" burden on interstate commerce. 348 A.d, at 515-519. The appellants strenuously contend that ch. 363, "while outwardly cloaked `in the currently fashionable garb of environmental *66 protection,' is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents" They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: Stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites. The appellees, on the other hand, deny that ch. 363 was motivated by financial concerns or economic protectionism. In the words of their brief, "[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste." Noting that New Jersey landfill operators are among the plaintiffs, the appellee's brief argues that "[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large." This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against *67 articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, 94 U. S., at 5-54; or to create jobs by keeping industry within the State, Foster-Fountain Packing 78 U.S. 1, ; 78 U.S. 16; -404; or to preserve the State's financial resources from depletion by fencing out indigent immigrants, In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy. Also relevant here are the Court's decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders. 1 U.S. 9; 6 U.S. 553. These cases stand for the basic principle that a "State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State."[6]Foster-Fountain Packing at *68 The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade. The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See at ; 15 U. S., at In the appellees' view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites. It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See 09 U.S. 51; ; at But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon *69 as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin. The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey's remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution. Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. The judgment is Reversed. MR.

Justice Marshall

dissenting

Commissioner v. McCoy

https://www.courtlistener.com/opinion/111962/commissioner-v-mccoy/

https://www.courtlistener.com/api/rest/v3/clusters/111962/

1987-002

I continue to be troubled by this Court's willingness to dispose of appeals and petitions for certiorari through summary per curiam opinions, without the benefit of briefing on the merits or review of the full record of proceedings below. I have elaborated this view before, see Montana v. Hall, 481 U.S. 400, 405, n. 1 (1987) (MARSHALL, J., dissenting), as have other Justices of this Court, see id., at 405, n. 2, but the admonition bears repeating. *8 My doubts about summary dispositions encompass concerns about both the parties who seek our review and the integrity, perceived and actual, of our proceedings. The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court's review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking redress in this Court and deprives them of any opportunity to argue the merits of their claims before judgment. Moreover, briefing on the merits should be encouraged not only because parties expect and deserve it, but because it leads to greater accuracy in our decisions. Briefing helps this Court to reduce as much as possible the inevitable incidence of error and confusion in our opinions each Term. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court. I adhere to the view that whenever the Court contemplates a summary disposition, it should review the full record below and invite the parties to file supplemental briefs on the merits if they wish. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than justify these modest accommodations

I continue to be troubled by this Court's willingness to dispose of appeals and petitions for certiorari through summary per curiam opinions, without the benefit of briefing on the merits or review of the full record of proceedings below. I have elaborated this view before, see as have other Justices of this Court, see but the admonition bears repeating. *8 My doubts about summary dispositions encompass concerns about both the parties who seek our review and the integrity, perceived and actual, of our proceedings. The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court's review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking redress in this Court and deprives them of any opportunity to argue the merits of their claims before judgment. Moreover, briefing on the merits should be encouraged not only because parties expect and deserve it, but because it leads to greater accuracy in our decisions. Briefing helps this Court to reduce as much as possible the inevitable incidence of error and confusion in our opinions each Term. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court. I adhere to the view that whenever the Court contemplates a summary disposition, it should review the full record below and invite the parties to file supplemental briefs on the merits if they wish. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than justify these modest accommodations

Justice Stevens

dissenting

United States v. Scheffer

https://www.courtlistener.com/opinion/118191/united-states-v-scheffer/

https://www.courtlistener.com/api/rest/v3/clusters/118191/

1997-048

The United States Court of Appeals for the Armed Forces held that the President violated the Constitution in June 1991, when he promulgated Rule 707 of the Military Rules of Evidence. Had I been a member of that court, I would not have decided that question without first requiring the parties to brief and argue the antecedent question whether Rule 707 violates Article 36(a) of the Uniform Code of Military Justice, 10 U.S. C. § 836(a). As presently advised, I am persuaded that the Rule does violate the statute and should be held invalid for that reason. I also agree with the Court of Appeals that the Rule is unconstitutional. This Court's contrary holding rests on a serious undervaluation of the importance of the citizen's constitutional right to present a defense *321 to a criminal charge and an unrealistic appraisal of the importance of the governmental interests that undergird the Rule. Before discussing the constitutional issue, I shall comment briefly on the statutory question. I Rule 707 is a blanket rule of exclusion.[1] No matter how reliable and how probative the results of a polygraph test may be, Rule 707 categorically denies the defendant any opportunity to persuade the court that the evidence should be received for any purpose. Indeed, even if the parties stipulate in advance that the results of a lie detector test may be admitted, the Rule requires exclusion. The principal charge against the respondent in this case was that he had knowingly used methamphetamine. His principal defense was "innocent ingestion"; even if the urinalysis test conducted on April 7, 1992, correctly indicated that he did ingest the substance, he claims to have been unaware of that fact. The results of the lie detector test conducted three days later, if accurate, constitute factual evidence that his physical condition at that time was consistent with the theory of his defense and inconsistent with the theory of the prosecution. The results were also relevant because they tended to confirm the credibility of his testimony. Under Rule 707, even if the results of the polygraph test were more reliable than the results of the urinalysis, the weaker evidence is admissible and the stronger evidence is inadmissible. Under the now discredited reasoning in a case decided 75 years ago, Frye v. United States, 54 Ohio App. D. C. 46, 293 *322 F. 1013 (1923), that anomalous result would also have been reached in nonmilitary cases tried in the federal courts. In recent years, however, we have not only repudiated Frye `s general approach to scientific evidence, but the federal courts have also been engaged in the process of rejecting the oncepopular view that all lie detector evidence should be categorically inadmissible.[2] Well reasoned opinions are concluding, consistently with this Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and General Electric Co. v. Joiner, 522 U.S. 136 (1997), that the federal rules wisely allow district judges to exercise broad discretion when evaluating the admissibility of scientific evidence.[3] Those opinions correctly observe that the rules of evidence generally recognized in the trial of civil and criminal cases in the federal courts do not contain any blanket prohibition against the admissibility of polygraph evidence. *323 In accord with the modern trend of decisions on this admissibility issue, in 1987 the Court of Military Appeals held that an accused was "entitled to attempt to lay" the foundation for admission of favorable polygraph evidence. United States v. Gipson, 24 M.J. 246, 253 (1987). The President responded to Gipson by adopting Rule 707. The governing statute authorized him to promulgate evidentiary rules "which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." 10 U.S. C. § 836(a).[4] Thus, if there are military concerns that warrant a special rule for military tribunals, the statute gives him ample authority to promulgate special rules that take such concerns into account. Rule 707 has no counterpart in either the Federal Rules of Evidence or the Federal Rules of Criminal Procedure. Moreover, to the extent that the use of the lie detector plays a special role in the military establishment, military practices are more favorable to a rule of admissibility than is the less structured use of lie detectors in the civilian sector of our society. That is so because the military carefully regulates the administration of polygraph tests to ensure reliable results. The military maintains "very stringent standards for polygraph examiners"[5] and has established its own Polygraph *324 Institute, which is "generally considered to be the best training facility for polygraph examiners in the United States."[6] The military has administered hundreds of thousands of such tests and routinely uses their results for a wide variety of official decisions.[7] *325 The stated reasons for the adoption of Rule 707 do not rely on any special military concern. They merely invoke three interests: (1) the interest in excluding unreliable evidence; (2) the interest in protecting the trier of fact from being misled by an unwarranted assumption that the polygraph evidence has "an aura of near infallibility"; and (3) the interest in avoiding collateral debates about the admissibility of particular test results. It seems clear that those interests pose less serious concerns in the military than in the civilian context. Disputes about the qualifications of the examiners, the equipment, and the testing procedures should seldom arise with respect to the tests conducted by the military. Moreover, there surely is no reason to assume that military personnel who perform the factfinding function are less competent than ordinary jurors to assess the reliability of particular results, or their relevance to the issues.[8] Thus, there is no identifiable military concern that justifies the President's promulgation of a special military rule that is more burdensome to the accused in military trials than the evidentiary rules applicable to the trial of civilians. It, therefore, seems fairly clear that Rule 707 does not comply with the statute. I do not rest on this ground, however, because briefing might persuade me to change my views, and because the Court has decided only the constitutional question. II The Court's opinion barely acknowledges that a person accused of a crime has a constitutional right to present a *326 defense. It is not necessary to point to "any particular language in the Sixth Amendment," ante, at 307, to support the conclusion that the right is firmly established. It is, however, appropriate to comment on the importance of that right before discussing the three interests that the Government relies upon to justify Rule 707. The Sixth Amendment provides that "the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." Because this right "is an essential attribute of the adversary system itself," we have repeatedly stated that few rights "are more fundamental than that of an accused to present witnesses in his own defense."[9] According to Joseph Story, that provision was included in the Bill of Rights in reaction to a notorious common-law rule categorically excluding defense evidence in treason and felony cases.[10] Our holding in Washington v. Texas, 388 U.S. 14 (1967), that this right is applicable to the States, rested on the premises that it "is in plain terms the right to present a defense" and that it "is a fundamental element of due process *327 of law."[11] Consistent with the history of the provision, the Court in that case held that a state rule of evidence that excluded "whole categories" of testimony on the basis of a presumption of unreliability was unconstitutional.[12] The blanket rule of inadmissibility held invalid in Washington v. Texas covered the testimony of alleged accomplices. Both before and after that decision, the Court has recognized the potential injustice produced by rules that exclude entire categories of relevant evidence that is potentially unreliable. At common law interested parties such as defendants,[13] their spouses,[14] and their co-conspirators[15] were not competent *328 witnesses. "Nor were those named the only grounds of exclusion from the witness stand; conviction of crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors." Benson v. United States, 146 U.S. 325, 336 (1892). And, of course, under the regime established by Frye v. United States, scientific evidence was inadmissible unless it met a stringent "general acceptance" test. Over the years, with respect to category after category, strict rules of exclusion have been replaced by rules that broaden the discretion of trial judges to admit potentially unreliable evidence and to allow properly instructed juries to evaluate its weight. While that trend has included both rulemaking and nonconstitutional judicial decisions, the direction of the trend has been consistent and it has been manifested in constitutional holdings as well. Commenting on the trend that had followed the decision in Benson, the Court in 1918 observed that in the "years which have elapsed since the decision of the Ben- son Case, the disposition of courts and of legislative bodies to remove disabilities from witnesses has continued, as that decision shows it had been going forward before, under dominance of the conviction of our time that the *329 truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with the result that this principle has come to be widely, almost universally, accepted in this country and in Great Britain." Rosen v. United States, 245 U.S. 467, 471. See also Funk v. United States, 290 U.S. 371, 377-378 (1933). It was in a case involving the disqualification of spousal testimony that Justice Stewart stated: "Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice." Hawkins v. United States, 358 U.S. 74, 81 (1958) (concurring opinion). State evidentiary rules may so seriously impede the discovery of truth, "as well as the doing of justice," that they preclude the "meaningful opportunity to present a complete defense" that is guaranteed by the Constitution, Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted).[16] In Chambers v. Mississippi, 410 U.S. 284, 302 *330 (1973), we concluded that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice."[17] As the Court notes today, restrictions on the "defendant's right to present relevant evidence," ante, at 308, must comply with the admonition in Rock v. Arkansas, 483 U.S. 44, 56 (1987), that they "may not be arbitrary or disproportionate to the purposes they are designed to serve." Applying that admonition to Arkansas' blanket rule prohibiting the admission of hypnotically refreshed testimony, we concluded that a "State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case." Id., at 61. That statement of constitutional law is directly relevant to this case. *331 III The constitutional requirement that a blanket exclusion of potentially unreliable evidence must be proportionate to the purposes served by the rule obviously makes it necessary to evaluate the interests on both sides of the balance. Today the Court all but ignores the strength of the defendant's interest in having polygraph evidence admitted in certain cases. As the facts of this case illustrate, the Court is quite wrong in assuming that the impact of Rule 707 on respondent's defense was not significant because it did not preclude the introduction of any "factual evidence" or prevent him from conveying "his version of the facts to the court-martial members." Ante, at 317. Under such reasoning, a rule that excluded the testimony of alibi witnesses would not be significant as long as the defendant is free to testify himself. But given the defendant's strong interest in the outcome— an interest that was sufficient to make his testimony presumptively untrustworthy and therefore inadmissible at common law—his uncorroborated testimony is certain to be less persuasive than that of a third-party witness. A rule that bars him "from introducing expert opinion testimony to bolster his own credibility," ibid., unquestionably impairs any "meaningful opportunity to present a complete defense"; indeed, it is sure to be outcome determinative in many cases. Moreover, in this case the results of the polygraph test, taken just three days after the urinalysis, constitute independent factual evidence that is not otherwise available and that strongly supports his defense of "innocent ingestion." Just as flight or other evidence of "consciousness of guilt" may sometimes be relevant, on some occasions evidence of "consciousness of innocence" may also be relevant to the central issue at trial. Both the answers to the questions propounded by the examiner, and the physical manifestations produced by those utterances, were probative of an innocent state of mind shortly after he ingested the drugs. In Dean Wigmore's view, both "conduct" and "utterances" may constitute *332 factual evidence of a "consciousness of innocence."[18] As the Second Circuit has held, when there is a serious factual dispute over the "basic defense [that defendant] was unaware of any criminal wrongdoing," evidence of his innocent state of mind is "critical to a fair adjudication of criminal charges."[19] The exclusion of the test results in this case cannot be fairly equated with a ruling that merely prevented the defendant from encumbering the record with cumulative evidence. Because the Rule may well have affected the outcome of the trial, it unquestionably "infringed upon a weighty interest of the accused." Ante, at 308. The question, then, is whether the three interests on which the Government relies are powerful enough to support a categorical rule excluding the results of all polygraph tests no matter how unfair such a rule may be in particular cases. *333 Reliability There are a host of studies that place the reliability of polygraph tests at 85% to 90%.[20] While critics of the polygraph argue that accuracy is much lower, even the studies cited by the critics place polygraph accuracy at 70%.[21] Moreover, to the extent that the polygraph errs, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa.[22] Thus, exculpatory polygraphs—like the one in this case—are likely to be more reliable than inculpatory ones. Of course, within the broad category of lie detector evidence, there may be a wide variation in both the validity and the relevance[23] of particular test results. Questions about the examiner's integrity, independence, choice of questions, or training in the detection of deliberate attempts to provoke misleading physiological responses may justify exclusion of *334 specific evidence. But such questions are properly addressed in adversary proceedings; they fall far short of justifying a blanket exclusion of this type of expert testimony. There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant's "future dangerousness" to determine his eligibility for the death penalty, even if wrong "most of the time," is routinely admitted. Barefoot v. Estelle, 463 U.S. 880, 898-901 (1983). Studies indicate that handwriting analysis, and even fingerprint identifications, may be less trustworthy than polygraph evidence in certain cases.[24] And, of course, even highly dubious eyewitness *335 testimony is, and should be, admitted and tested in the crucible of cross-examination. The Court's reliance on potential unreliability as a justification for a categorical rule of inadmissibility reveals that it is "overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U. S., at 596.[25] *336 The Role of the Jury It is the function of the jury to make credibility determinations. In my judgment evidence that tends to establish either a consciousness of guilt or a consciousness of innocence may be of assistance to the jury in making such determinations. That also was the opinion of Dean Wigmore: "Let the accused's whole conduct come in; and whether it tells for consciousness of guilt or for consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and is not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations." 2 J. Wigmore, Evidence § 293, p. 232 (J. Chadbourn rev. ed. 1979). There is, of course, some risk that some "juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise," ante, at 313-314. In my judgment, however, it is much more likely that juries will be guided by the instructions of the trial judge concerning the credibility of expert as well as lay witnesses. The strong presumption that juries will follow the court's instructions, see, e. g., Richardson v. Marsh, 481 U.S. 200, 211 (1987), applies to exculpatory as well as inculpatory evidence. Common *337 sense suggests that the testimony of disinterested third parties that is relevant to the jury's credibility determination will assist rather than impair the jury's deliberations. As with the reliance on the potential unreliability of this type of evidence, the reliance on a fear that the average jury is not able to assess the weight of this testimony reflects a distressing lack of confidence in the intelligence of the average American.[26] Collateral Litigation The potential burden of collateral proceedings to determine the examiner's qualifications is a manifestly insufficient justification for a categorical exclusion of expert testimony. Such proceedings are a routine predicate for the admission of any expert testimony, and may always give rise to searching cross-examination. If testimony that is critical to a fair determination of guilt or innocence could be excluded for that reason, the right to a meaningful opportunity to present a defense would be an illusion. It is incongruous for the party that selected the examiner, the equipment, the testing procedures, and the questions asked of the defendant to complain about the examinee's burden of proving that the test was properly conducted. While there may well be a need for substantial collateral proceedings when the party objecting to admissibility has a basis for questioning some aspect of the examination, it seems quite obvious that the Government is in no position to challenge *338 the competence of the procedures that it has developed and relied upon in hundreds of thousands of cases. In all events the concern about the burden of collateral debates about the integrity of a particular examination, or the competence of a particular examiner, provides no support for a categorical rule that requires exclusion even when the test is taken pursuant to a stipulation and even when there has been a stipulation resolving all potential collateral issues. Indeed, in this very case there would have been no need for any collateral proceedings because respondent did not question the qualifications of the expert who examined him, and surely the Government is in no position to argue that one who has successfully completed its carefully developed training program[27] is unqualified. The interest in avoiding burdensome collateral proceedings might support a rule prescribing minimum standards that must be met before any test is admissible,[28] but it surely does not support the blunderbuss at issue.[29] IV The Government's concerns would unquestionably support the exclusion of polygraph evidence in particular cases, and may well be sufficient to support a narrower rule designed to respond to specific concerns. In my judgment, however, *339 those concerns are plainly insufficient to support a categorical rule that prohibits the admission of polygraph evidence in all cases, no matter how reliable or probative the evidence may be. Accordingly, I respectfully dissent.

The United States Court of Appeals for the Armed Forces held that the President violated the Constitution in June 1991, when he promulgated Rule 707 of the Military Rules of Evidence. Had I been a member of that court, I would not have decided that question without first requiring the parties to brief and argue the antecedent question whether Rule 707 violates Article 36(a) of the Uniform Code of Military Justice, 10 U.S. C. 836(a). As presently advised, I am persuaded that the Rule does violate the statute and should be held invalid for that reason. I also agree with the Court of Appeals that the Rule is unconstitutional. This Court's contrary holding rests on a serious undervaluation of the importance of the citizen's constitutional right to present a defense *321 to a criminal charge and an unrealistic appraisal of the importance of the governmental interests that undergird the Rule. Before discussing the constitutional issue, I shall comment briefly on the statutory question. I Rule 707 is a blanket rule of exclusion.[1] No matter how reliable and how probative the results of a polygraph test may be, Rule 707 categorically denies the defendant any opportunity to persuade the court that the evidence should be received for any purpose. Indeed, even if the parties stipulate in advance that the results of a lie detector test may be admitted, the Rule requires exclusion. The principal charge against the respondent in this case was that he had knowingly used methamphetamine. His principal defense was "innocent ingestion"; even if the urinalysis test conducted on April 7, 1992, correctly indicated that he did ingest the substance, he claims to have been unaware of that fact. The results of the lie detector test conducted three days later, if accurate, constitute factual evidence that his physical condition at that time was consistent with the theory of his defense and inconsistent with the theory of the prosecution. The results were also relevant because they tended to confirm the credibility of his testimony. Under Rule 707, even if the results of the polygraph test were more reliable than the results of the urinalysis, the weaker evidence is admissible and the stronger evidence is inadmissible. Under the now discredited reasoning in a case decided 75 years ago, that anomalous result would also have been reached in nonmilitary cases tried in the federal courts. In recent years, however, we have not only repudiated Frye `s general approach to scientific evidence, but the federal courts have also been engaged in the process of rejecting the oncepopular view that all lie detector evidence should be categorically inadmissible.[2] Well reasoned opinions are concluding, consistently with this Court's decisions in and General Electric that the federal rules wisely allow district judges to exercise broad discretion when evaluating the admissibility of scientific evidence.[3] Those opinions correctly observe that the rules of evidence generally recognized in the trial of civil and criminal cases in the federal courts do not contain any blanket prohibition against the admissibility of polygraph evidence. *323 In accord with the modern trend of decisions on this admissibility issue, in the Court of Military Appeals held that an accused was "entitled to attempt to lay" the foundation for admission of favorable polygraph evidence. United The President responded to Gipson by adopting Rule 707. The governing statute authorized him to promulgate evidentiary rules "which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." 10 U.S. C. 836(a).[4] Thus, if there are military concerns that warrant a special rule for military tribunals, the statute gives him ample authority to promulgate special rules that take such concerns into account. Rule 707 has no counterpart in either the Federal Rules of Evidence or the Federal Rules of Criminal Procedure. Moreover, to the extent that the use of the lie detector plays a special role in the military establishment, military practices are more favorable to a rule of admissibility than is the less structured use of lie detectors in the civilian sector of our society. That is so because the military carefully regulates the administration of polygraph tests to ensure reliable results. The military maintains "very stringent standards for polygraph examiners"[5] and has established its own Polygraph *324 Institute, which is "generally considered to be the best training facility for polygraph examiners in the United States."[6] The military has administered hundreds of thousands of such tests and routinely uses their results for a wide variety of official decisions.[7] *325 The stated reasons for the adoption of Rule 707 do not rely on any special military concern. They merely invoke three interests: (1) the interest in excluding unreliable evidence; (2) the interest in protecting the trier of fact from being misled by an unwarranted assumption that the polygraph evidence has "an aura of near infallibility"; and (3) the interest in avoiding collateral debates about the admissibility of particular test results. It seems clear that those interests pose less serious concerns in the military than in the civilian context. Disputes about the qualifications of the examiners, the equipment, and the testing procedures should seldom arise with respect to the tests conducted by the military. Moreover, there surely is no reason to assume that military personnel who perform the factfinding function are less competent than ordinary jurors to assess the reliability of particular results, or their relevance to the issues.[8] Thus, there is no identifiable military concern that justifies the President's promulgation of a special military rule that is more burdensome to the accused in military trials than the evidentiary rules applicable to the trial of civilians. It, therefore, seems fairly clear that Rule 707 does not comply with the statute. I do not rest on this ground, however, because briefing might persuade me to change my views, and because the Court has decided only the constitutional question. II The Court's opinion barely acknowledges that a person accused of a crime has a constitutional right to present a *326 defense. It is not necessary to point to "any particular language in the Sixth Amendment," ante, at 307, to support the conclusion that the right is firmly established. It is, however, appropriate to comment on the importance of that right before discussing the three interests that the Government relies upon to justify Rule 707. The Sixth Amendment provides that "the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor." Because this right "is an essential attribute of the adversary system itself," we have repeatedly stated that few rights "are more fundamental than that of an accused to present witnesses in his own defense."[9] According to Joseph Story, that provision was included in the Bill of Rights in reaction to a notorious common-law rule categorically excluding defense evidence in treason and felony cases.[10] Our holding in that this right is applicable to the States, rested on the premises that it "is in plain terms the right to present a defense" and that it "is a fundamental element of due process *327 of law."[11] Consistent with the history of the provision, the Court in that case held that a state rule of evidence that excluded "whole categories" of testimony on the basis of a presumption of unreliability was unconstitutional.[12] The blanket rule of inadmissibility held invalid in covered the testimony of alleged accomplices. Both before and after that decision, the Court has recognized the potential injustice produced by rules that exclude entire categories of relevant evidence that is potentially unreliable. At common law interested parties such as defendants,[13] their spouses,[14] and their co-conspirators[15] were not competent *328 witnesses. "Nor were those named the only grounds of exclusion from the witness stand; conviction of crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors." And, of course, under the regime established by Frye v. United States, scientific evidence was inadmissible unless it met a stringent "general acceptance" test. Over the years, with respect to category after category, strict rules of exclusion have been replaced by rules that broaden the discretion of trial judges to admit potentially unreliable evidence and to allow properly instructed juries to evaluate its weight. While that trend has included both rulemaking and nonconstitutional judicial decisions, the direction of the trend has been consistent and it has been manifested in constitutional holdings as well. Commenting on the trend that had followed the decision in Benson, the Court in 1918 observed that in the "years which have elapsed since the decision of the Ben- son Case, the disposition of courts and of legislative bodies to remove disabilities from witnesses has continued, as that decision shows it had been going forward before, under dominance of the conviction of our time that the *329 truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with the result that this principle has come to be widely, almost universally, accepted in this country and in Great Britain." See also It was in a case involving the disqualification of spousal testimony that Justice Stewart stated: "Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice." State evidentiary rules may so seriously impede the discovery of truth, "as well as the doing of justice," that they preclude the "meaningful opportunity to present a complete defense" that is guaranteed by the Constitution,[16] In we concluded that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice."[17] As the Court notes today, restrictions on the "defendant's right to present relevant evidence," ante, at 308, must comply with the admonition in that they "may not be arbitrary or disproportionate to the purposes they are designed to serve." Applying that admonition to Arkansas' blanket rule prohibiting the admission of hypnotically refreshed testimony, we concluded that a "State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case." That statement of constitutional law is directly relevant to this case. *331 III The constitutional requirement that a blanket exclusion of potentially unreliable evidence must be proportionate to the purposes served by the rule obviously makes it necessary to evaluate the interests on both sides of the balance. Today the Court all but ignores the strength of the defendant's interest in having polygraph evidence admitted in certain cases. As the facts of this case illustrate, the Court is quite wrong in assuming that the impact of Rule 707 on respondent's defense was not significant because it did not preclude the introduction of any "factual evidence" or prevent him from conveying "his version of the facts to the court-martial members." Ante, at 317. Under such reasoning, a rule that excluded the testimony of alibi witnesses would not be significant as long as the defendant is free to testify himself. But given the defendant's strong interest in the outcome— an interest that was sufficient to make his testimony presumptively untrustworthy and therefore inadmissible at common law—his uncorroborated testimony is certain to be less persuasive than that of a third-party witness. A rule that bars him "from introducing expert opinion testimony to bolster his own credibility," ibid., unquestionably impairs any "meaningful opportunity to present a complete defense"; indeed, it is sure to be outcome determinative in many cases. Moreover, in this case the results of the polygraph test, taken just three days after the urinalysis, constitute independent factual evidence that is not otherwise available and that strongly supports his defense of "innocent ingestion." Just as flight or other evidence of "consciousness of guilt" may sometimes be relevant, on some occasions evidence of "consciousness of innocence" may also be relevant to the central issue at trial. Both the answers to the questions propounded by the examiner, and the physical manifestations produced by those utterances, were probative of an innocent state of mind shortly after he ingested the drugs. In Dean Wigmore's view, both "conduct" and "utterances" may constitute *332 factual evidence of a "consciousness of innocence."[18] As the Second Circuit has held, when there is a serious factual dispute over the "basic defense [that defendant] was unaware of any criminal wrongdoing," evidence of his innocent state of mind is "critical to a fair adjudication of criminal charges."[19] The exclusion of the test results in this case cannot be fairly equated with a ruling that merely prevented the defendant from encumbering the record with cumulative evidence. Because the Rule may well have affected the outcome of the trial, it unquestionably "infringed upon a weighty interest of the accused." Ante, at 308. The question, then, is whether the three interests on which the Government relies are powerful enough to support a categorical rule excluding the results of all polygraph tests no matter how unfair such a rule may be in particular cases. *333 Reliability There are a host of studies that place the reliability of polygraph tests at 85% to 90%.[20] While critics of the polygraph argue that accuracy is much lower, even the studies cited by the critics place polygraph accuracy at 70%.[21] Moreover, to the extent that the polygraph errs, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa.[22] Thus, exculpatory polygraphs—like the one in this case—are likely to be more reliable than inculpatory ones. Of course, within the broad category of lie detector evidence, there may be a wide variation in both the validity and the relevance[23] of particular test results. Questions about the examiner's integrity, independence, choice of questions, or training in the detection of deliberate attempts to provoke misleading physiological responses may justify exclusion of *334 specific evidence. But such questions are properly addressed in adversary proceedings; they fall far short of justifying a blanket exclusion of this type of expert testimony. There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant's "future dangerousness" to determine his eligibility for the death penalty, even if wrong "most of the time," is routinely admitted. Studies indicate that handwriting analysis, and even fingerprint identifications, may be less trustworthy than polygraph evidence in certain cases.[24] And, of course, even highly dubious eyewitness *335 testimony is, and should be, admitted and tested in the crucible of cross-examination. The Court's reliance on potential unreliability as a justification for a categorical rule of inadmissibility reveals that it is "overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."[25] * The Role of the Jury It is the function of the jury to make credibility determinations. In my judgment evidence that tends to establish either a consciousness of guilt or a consciousness of innocence may be of assistance to the jury in making such determinations. That also was the opinion of Dean Wigmore: "Let the accused's whole conduct come in; and whether it tells for consciousness of guilt or for consciousness of innocence, let us take it for what it is worth, remembering that in either case it is open to varying explanations and is not to be emphasized. Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations." 2 J. Wigmore, Evidence 293, p. 232 (J. Chadbourn rev. ed. 1979). There is, of course, some risk that some "juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise," ante, at 313-314. In my judgment, however, it is much more likely that juries will be guided by the instructions of the trial judge concerning the credibility of expert as well as lay witnesses. The strong presumption that juries will follow the court's instructions, see, e. g., 4 U.S. 200, applies to exculpatory as well as inculpatory evidence. Common *337 sense suggests that the testimony of disinterested third parties that is relevant to the jury's credibility determination will assist rather than impair the jury's deliberations. As with the reliance on the potential unreliability of this type of evidence, the reliance on a fear that the average jury is not able to assess the weight of this testimony reflects a distressing lack of confidence in the intelligence of the average American.[26] Collateral Litigation The potential burden of collateral proceedings to determine the examiner's qualifications is a manifestly insufficient justification for a categorical exclusion of expert testimony. Such proceedings are a routine predicate for the admission of any expert testimony, and may always give rise to searching cross-examination. If testimony that is critical to a fair determination of guilt or innocence could be excluded for that reason, the right to a meaningful opportunity to present a defense would be an illusion. It is incongruous for the party that selected the examiner, the equipment, the testing procedures, and the questions asked of the defendant to complain about the examinee's burden of proving that the test was properly conducted. While there may well be a need for substantial collateral proceedings when the party objecting to admissibility has a basis for questioning some aspect of the examination, it seems quite obvious that the Government is in no position to challenge *338 the competence of the procedures that it has developed and relied upon in hundreds of thousands of cases. In all events the concern about the burden of collateral debates about the integrity of a particular examination, or the competence of a particular examiner, provides no support for a categorical rule that requires exclusion even when the test is taken pursuant to a stipulation and even when there has been a stipulation resolving all potential collateral issues. Indeed, in this very case there would have been no need for any collateral proceedings because respondent did not question the qualifications of the expert who examined him, and surely the Government is in no position to argue that one who has successfully completed its carefully developed training program[27] is unqualified. The interest in avoiding burdensome collateral proceedings might support a rule prescribing minimum standards that must be met before any test is admissible,[28] but it surely does not support the blunderbuss at issue.[29] IV The Government's concerns would unquestionably support the exclusion of polygraph evidence in particular cases, and may well be sufficient to support a narrower rule designed to respond to specific concerns. In my judgment, however, *339 those concerns are plainly insufficient to support a categorical rule that prohibits the admission of polygraph evidence in all cases, no matter how reliable or probative the evidence may be. Accordingly, I respectfully dissent.

Justice Souter

majority

United States v. Banks

https://www.courtlistener.com/opinion/131146/united-states-v-banks/

https://www.courtlistener.com/api/rest/v3/clusters/131146/

2003-004

Officers executing a warrant to search for cocaine in respondent Banks's apartment knocked and announced their authority. The question is whether their 15-to-20-second wait before a forcible entry satisfied the Fourth Amendment and 18 U.S. C. §3109. We hold that it did. I With information that Banks was selling cocaine at home, North Las Vegas Police Department officers and Federal Bureau of Investigation agents got a warrant to search his two-bedroom apartment. As soon as they arrived there, about 2 o'clock on a Wednesday afternoon, officers posted in front called out "police search warrant" and rapped hard enough on the door to be heard by officers at the back door. Brief for United States 3 (internal quotation marks omitted). There was no indication whether anyone was home, and after waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram. Banks was in the shower and testified that he heard nothing until the crash of the door, which brought him out dripping to confront the police. The search produced weapons, crack cocaine, and other evidence of drug dealing. In response to drug and firearms charges, Banks moved to suppress evidence, arguing that the officers executing the search warrant waited an unreasonably short time before forcing entry, and so violated both the Fourth Amendment and 18 U.S. C. § 3109.[1] The District Court denied the motion, and Banks pleaded guilty, reserving his right to challenge the search on appeal. *34 A divided panel of the Ninth Circuit reversed and ordered suppression of the evidence found. 282 F.3d 699 (2002). In assessing the reasonableness of the execution of the warrant, the panel majority set out a nonexhaustive list of "factors that an officer reasonably should consider" in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment: "(a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect's guilt; (g) suspect's prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary." Id., at 704. The majority also defined four categories of intrusion after knock and announcement, saying that the classification "aids in the resolution of the essential question whether the entry made herein was reasonable under the circumstances": "(1) entries in which exigent circumstances exist and non-forcible entry is possible, permitting entry to be made simultaneously with or shortly after announcement; (2) entries in which exigent circumstances exist and forced entry by destruction of property is required, necessitating more specific inferences of exigency; (3) entries in which no exigent circumstances exist and non-forcible entry is possible, requiring an explicit refusal of admittance or a lapse of a significant amount of time; and (4) entries in which no exigent circumstances exist and forced entry by destruction of property is required, mandating an explicit refusal of admittance or a *35 lapse of an even more substantial amount of time." Ibid. The panel majority put the action of the officers here in the last category, on the understanding that they destroyed the door without hearing anything to suggest a refusal to admit even though sound traveled easily through the small apartment. The majority held the 15-to-20-second delay after knocking and announcing to be "[in]sufficient ... to satisfy the constitutional safeguards." Id., at 705. Judge Fisher dissented, saying that the majority ought to come out the other way based on the very grounds it stressed: Banks's small apartment, the loud knock and announcement, the suspected offense of dealing in cocaine, and the time of the day. Judge Fisher thought the lapse of 15 to 20 seconds was enough to support a reasonable inference that admittance had been constructively denied. Id., at 710. We granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case. 537 U.S. 1187 (2003). We now reverse. II There has never been a dispute that these officers were obliged to knock and announce their intentions when executing the search warrant, an obligation they concededly honored. Despite this agreement, we start with a word about standards for requiring or dispensing with a knock and announcement, since the same criteria bear on when the officers could legitimately enter after knocking. The Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be "secure... against unreasonable searches and seizures." Although the notion of reasonable execution must therefore be fleshed *36 out, we have done that case by case, largely avoiding categories and protocols for searches. Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones. See, e. g., Ohio v. Robinette, 519 U.S. 33, 39 (1996) ("[W]e have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry"); Ker v. California, 374 U.S. 23, 33 (1963) (reasonableness not susceptible to Procrustean application); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931) (no formula for determining reasonableness; each case on its own facts and circumstances). We have, however, pointed out factual considerations of unusual, albeit not dispositive, significance. In Wilson v. Arkansas, 514 U.S. 927 (1995), we held that the common law knock-and-announce principle is one focus of the reasonableness enquiry; and we subsequently decided that although the standard generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence," Richards v. Wisconsin, 520 U.S. 385, 394 (1997). When a warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking, a magistrate judge is acting within the Constitution to authorize a "no-knock" entry.[2] And even when executing a warrant silent about *37 that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in. Id., at 394, 396, n. 7. Since most people keep their doors locked, entering without knocking will normally do some damage, a circumstance too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry. We have accordingly held that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch. United States v. Ramirez, 523 U.S. 65, 70-71 (1998). Either way, it is enough that the officers had a reasonable suspicion of exigent circumstances.[3] III Like Ramirez, this case turns on the significance of exigency revealed by circumstances known to the officers, for the only substantive difference between the two situations goes to the time at which the officers reasonably anticipated some danger calling for action without delay.[4] Whereas the *38 Ramirez Magistrate Judge found in advance that the customary warning would raise an immediate risk that a wanted felon would elude capture or pose a threat to the officers, see id., at 68, here the Government claims that a risk of losing evidence arose shortly after knocking and announcing. Although the police concededly arrived at Banks's door without reasonable suspicion of facts justifying a no-knock entry, they argue that announcing their presence started the clock running toward the moment of apprehension that Banks would flush away the easily disposable cocaine, prompted by knowing the police would soon be coming in. While it was held reasonable for the police in Ramirez to enter forcibly upon arrival, the Government argues it was equally reasonable for the officers to go in with force here as soon as the danger of disposal had ripened. Banks does not, of course, deny that exigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way. Though we agree with Judge Fisher's dissenting opinion that this call is a close one, 282 F.3d, at 707, we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer. Courts of Appeals have, indeed, routinely held similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence (and some courts have found even shorter ones to be reasonable enough).[5] *39 A look at Banks's counterarguments shows why these courts reached sensible results, for each of his reasons for saying that 15 to 20 seconds was too brief rests on a mistake about the relevant enquiry: the fact that he was actually in the shower and did not hear the officers is not to the point, and the same is true of the claim that it might have taken him longer than 20 seconds if he had heard the knock and headed straight for the door. As for the shower, it is enough to say that the facts known to the police are what count in judging reasonable waiting time, cf., e. g., Graham v. Connor, 490 U.S. 386, 396 (1989) ("The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight"), and there is no indication that the police knew that Banks was in the shower and thus unaware of an impending search that he would otherwise have tried to frustrate. And the argument that 15 to 20 seconds was too short for Banks to have come to the door ignores the very risk that justified prompt entry. True, if the officers were to justify their timing here by claiming that Banks's failure to admit them fairly suggested a refusal to let them in, Banks could at least argue that no such suspicion can arise until an occupant *40 has had time to get to the door,[6] a time that will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse. In this case, however, the police claim exigent need to enter, and the crucial fact in examining their actions is not time to reach the door but the particular exigency claimed. On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks's. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine. Once the exigency had matured, of course, the officers were not bound to learn anything more or wait any longer before going in, even though their entry entailed some harm to the building. Ramirez held that the exigent need of law enforcement trumps a resident's interest in avoiding all property damage, see 523 U.S., at 70-71, and there is no reason to treat a post-knock exigency differently from the no-knock counterpart in Ramirez itself. *41 IV Our emphasis on totality analysis necessarily rejects positions taken on each side of this case. Ramirez, for example, cannot be read with the breadth the Government espouses, as "reflect[ing] a general principle that the need to damage property in order to effectuate an entry to execute a search warrant should not be part of the analysis of whether the entry itself was reasonable." Brief for United States 18; Reply Brief for United States 4. At common law, the knock-and-announce rule was traditionally "justified in part by the belief that announcement generally would avoid `the destruction or breaking of any house . . . by which great damage and inconvenience might ensue.'" Wilson, 514 U. S., at 935-936 (quoting Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1603)). One point in making an officer knock and announce, then, is to give a person inside the chance to save his door. That is why, in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door. It is hard to be more definite than that, without turning the notion of a reasonable time under all the circumstances into a set of sub-rules as the Ninth Circuit has been inclined to do. Suffice it to say that the need to damage property in the course of getting in is a good reason to require more patience than it would be reasonable to expect if the door were open. Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram. On the other side, we disapprove of the Court of Appeals's four-part scheme for vetting knock-and-announce entries. To begin with, the demand for enhanced evidence of exigency before a door can reasonably be damaged by a warranted no-knock intrusion was already bad law before the Court of Appeals decided this case. In Ramirez (a case from the *42 Ninth Circuit), we rejected an attempt to subdivide felony cases by accepting "mild exigency" for entry without property damage, but requiring "more specific inferences of exigency" before damage would be reasonable. 523 U.S., at 69-71 (internal quotation marks omitted). The Court of Appeals did not cite Ramirez. Nor did the appeals court cite United States v. Arvizu, 534 U.S. 266 (2002) (again, from the Ninth Circuit). There, we recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the Circuit described as "troubling . . . uncertainty" in reasonableness analysis, by "describ[ing] and clearly delimit[ing]" an officer's consideration of certain factors. Id., at 272, 275 (internal quotation marks omitted). Here, as in Arvizu, the Court of Appeals's overlay of a categorical scheme on the general reasonableness analysis threatens to distort the "totality of the circumstances" principle, by replacing a stress on revealing facts with resort to pigeonholes. Id., at 274 (internal quotation marks omitted). Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time. Instructions couched in terms like "significant amount of time," and "an even more substantial amount of time," 282 F.3d, at 704, tell very little. V Last, there is Banks's claim that the entry violated 18 U.S. C. § 3109. Ramirez held that the result should be the same under the Fourth Amendment and §3109, permitting an officer to enter by force "if, after notice of his authority and purpose, he is refused admittance." We explained the statute's "`requirement of prior notice . . . before forcing entry . . . [as] codif[ying] a tradition embedded in Anglo-American law,'" 523 U.S., at 72 (quoting Miller v. United States, 357 U.S. 301, 313 (1958)); see also Sabbath v. United States, 391 U.S. 585, 591, n. 8 (1968), and we held that § 3109 implicates the exceptions to the common law knock-and-announce *43 requirement that inform the Fourth Amendment itself, 523 U.S., at 73. The upshot is that § 3109 is subject to an exigent circumstances exception, ibid., which qualifies the requirement of refusal after notice, just as it qualifies the obligation to announce in the first place. Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied § 3109 as well as the Fourth Amendment, even without refusal of admittance. The judgment of the Court of Appeals is reversed. So ordered.

Officers executing a warrant to search for cocaine in respondent Banks's apartment knocked and announced their authority. The question is whether their 15-to-20-second wait before a forcible entry satisfied the Fourth Amendment and 18 U.S. C. We hold that it did. I With information that Banks was selling cocaine at home, North Las Vegas Police Department officers and Federal Bureau of Investigation agents got a warrant to search his two-bedroom apartment. As soon as they arrived there, about 2 o'clock on a Wednesday afternoon, officers posted in front called out "police search warrant" and rapped hard enough on the door to be heard by officers at the back door. Brief for United States 3 There was no indication whether anyone was home, and after waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram. Banks was in the shower and testified that he heard nothing until the crash of the door, which brought him out dripping to confront the police. The search produced weapons, crack cocaine, and other evidence of drug dealing. In response to drug and firearms charges, Banks moved to suppress evidence, arguing that the officers executing the search warrant waited an unreasonably short time before forcing entry, and so violated both the Fourth Amendment and 18 U.S. C. 3109.[1] The District Court denied the motion, and Banks pleaded guilty, reserving his right to challenge the search on appeal. *34 A divided panel of the Ninth Circuit reversed and ordered suppression of the evidence found. In assessing the reasonableness of the execution of the warrant, the panel majority set out a nonexhaustive list of "factors that an officer reasonably should consider" in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment: "(a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect's guilt; (g) suspect's prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary." The majority also defined four categories of intrusion after knock and announcement, saying that the classification "aids in the resolution of the essential question whether the entry made herein was reasonable under the circumstances": "(1) entries in which exigent circumstances exist and non-forcible entry is possible, permitting entry to be made simultaneously with or shortly after announcement; (2) entries in which exigent circumstances exist and forced entry by destruction of property is required, necessitating more specific inferences of exigency; (3) entries in which no exigent circumstances exist and non-forcible entry is possible, requiring an explicit refusal of admittance or a lapse of a significant amount of time; and (4) entries in which no exigent circumstances exist and forced entry by destruction of property is required, mandating an explicit refusal of admittance or a *35 lapse of an even more substantial amount of time." The panel majority put the action of the officers here in the last category, on the understanding that they destroyed the door without hearing anything to suggest a refusal to admit even though sound traveled easily through the small apartment. The majority held the 15-to-20-second delay after knocking and announcing to be "[in]sufficient to satisfy the constitutional safeguards." Judge Fisher dissented, saying that the majority ought to come out the other way based on the very grounds it stressed: Banks's small apartment, the loud knock and announcement, the suspected offense of dealing in cocaine, and the time of the day. Judge Fisher thought the lapse of 15 to 20 seconds was enough to support a reasonable inference that admittance had been constructively denied. We granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case. We now reverse. II There has never been a dispute that these officers were obliged to knock and announce their intentions when executing the search warrant, an obligation they concededly honored. Despite this agreement, we start with a word about standards for requiring or dispensing with a knock and announcement, since the same criteria bear on when the officers could legitimately enter after knocking. The Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be "secure. against unreasonable searches and seizures." Although the notion of reasonable execution must therefore be fleshed *36 out, we have done that case by case, largely avoiding categories and protocols for searches. Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones. See, e. g., ; ; Go-Bart Importing We have, however, pointed out factual considerations of unusual, albeit not dispositive, significance. In we held that the common law knock-and-announce principle is one focus of the reasonableness enquiry; and we subsequently decided that although the standard generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence," 4 When a warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking, a magistrate judge is acting within the Constitution to authorize a "no-knock" entry.[2] And even when executing a warrant silent about *37 that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in. at 4, 6, n. 7. Since most people keep their doors locked, entering without knocking will normally do some damage, a circumstance too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry. We have accordingly held that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch. United Either way, it is enough that the officers had a reasonable suspicion of exigent circumstances.[3] III Like Ramirez, this case turns on the significance of exigency revealed by circumstances known to the officers, for the only substantive difference between the two situations goes to the time at which the officers reasonably anticipated some danger calling for action without delay.[4] Whereas the *38 Ramirez Magistrate Judge found in advance that the customary warning would raise an immediate risk that a wanted felon would elude capture or pose a threat to the officers, see here the Government claims that a risk of losing evidence arose shortly after knocking and announcing. Although the police concededly arrived at Banks's door without reasonable suspicion of facts justifying a no-knock entry, they argue that announcing their presence started the clock running toward the moment of apprehension that Banks would flush away the easily disposable cocaine, prompted by knowing the police would soon be coming in. While it was held reasonable for the police in Ramirez to enter forcibly upon arrival, the Government argues it was equally reasonable for the officers to go in with force here as soon as the danger of disposal had ripened. Banks does not, of course, deny that exigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way. Though we agree with Judge Fisher's dissenting opinion that this call is a close one, we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer. Courts of Appeals have, indeed, routinely held similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence (and some courts have found even shorter ones to be reasonable enough).[5] * A look at Banks's counterarguments shows why these courts reached sensible results, for each of his reasons for saying that 15 to 20 seconds was too brief rests on a mistake about the relevant enquiry: the fact that he was actually in the shower and did not hear the officers is not to the point, and the same is true of the claim that it might have taken him longer than 20 seconds if he had heard the knock and headed straight for the door. As for the shower, it is enough to say that the facts known to the police are what count in judging reasonable waiting time, cf., e. g., 6 and there is no indication that the police knew that Banks was in the shower and thus unaware of an impending search that he would otherwise have tried to frustrate. And the argument that 15 to 20 seconds was too short for Banks to have come to the door ignores the very risk that justified prompt entry. True, if the officers were to justify their timing here by claiming that Banks's failure to admit them fairly suggested a refusal to let them in, Banks could at least argue that no such suspicion can arise until an occupant *40 has had time to get to the door,[6] a time that will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse. In this case, however, the police claim exigent need to enter, and the crucial fact in examining their actions is not time to reach the door but the particular exigency claimed. On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks's. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine. Once the exigency had matured, of course, the officers were not bound to learn anything more or wait any longer before going in, even though their entry entailed some harm to the building. Ramirez held that the exigent need of law enforcement trumps a resident's interest in avoiding all property damage, see 523 U.S., at and there is no reason to treat a post-knock exigency differently from the no-knock counterpart in Ramirez *41 IV Our emphasis on totality analysis necessarily rejects positions taken on each side of this case. Ramirez, for example, cannot be read with the breadth the Government espouses, as "reflect[ing] a general principle that the need to damage property in order to effectuate an entry to execute a search warrant should not be part of the analysis of whether the entry was " Brief for United States 18; Reply Brief for United States 4. At common law, the knock-and-announce rule was traditionally "justified in part by the belief that announcement generally would avoid `the destruction or breaking of any house by which great damage and inconvenience might ensue.'" -936 One point in making an officer knock and announce, then, is to give a person inside the chance to save his door. That is why, in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door. It is hard to be more definite than that, without turning the notion of a reasonable time under all the circumstances into a set of sub-rules as the Ninth Circuit has been inclined to do. Suffice it to say that the need to damage property in the course of getting in is a good reason to require more patience than it would be reasonable to expect if the door were open. Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram. On the other side, we disapprove of the Court of Appeals's four-part scheme for vetting knock-and-announce entries. To begin with, the demand for enhanced evidence of exigency before a door can reasonably be damaged by a warranted no-knock intrusion was already bad law before the Court of Appeals decided this case. In Ramirez (a case from the *42 Ninth Circuit), we rejected an attempt to subdivide felony cases by accepting "mild exigency" for entry without property damage, but requiring "more specific inferences of exigency" before damage would be -71 The Court of Appeals did not cite Ramirez. Nor did the appeals court cite United There, we recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the Circuit described as "troubling uncertainty" in reasonableness analysis, by "describ[ing] and clearly delimit[ing]" an officer's consideration of certain factors. Here, as in Arvizu, the Court of Appeals's overlay of a categorical scheme on the general reasonableness analysis threatens to distort the "totality of the circumstances" principle, by replacing a stress on revealing facts with resort to pigeonholes. Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time. Instructions couched in terms like "significant amount of time," and "an even more substantial amount of time," 282 F.3d, tell very little. V Last, there is Banks's claim that the entry violated 18 U.S. C. 3109. Ramirez held that the result should be the same under the Fourth Amendment and 3109, permitting an officer to enter by force "if, after notice of his authority and purpose, he is refused admittance." We explained the statute's "`requirement of prior notice before forcing entry [as] codif[ying] a tradition embedded in Anglo-American law,'" ); see also 1 U.S. 585, and we held that 3109 implicates the exceptions to the common law knock-and-announce *43 requirement that inform the Fourth Amendment The upshot is that 3109 is subject to an exigent circumstances exception, ib which qualifies the requirement of refusal after notice, just as it qualifies the obligation to announce in the first place. Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied 3109 as well as the Fourth Amendment, even without refusal of admittance. The judgment of the Court of Appeals is reversed. So ordered.

Justice Powell

majority

Henderson v. United States

https://www.courtlistener.com/opinion/111670/henderson-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/111670/

1985-086

The Speedy Trial Act, 18 U.S. C. § 3161 et seq. (1982 ed. and Supp. II), as amended in 1979 and in 1984, commands that a defendant be tried within 70 days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate. Section 3161(h)(1)(F) excludes from this time "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." This case requires us to decide the narrow questions whether that exclusion is limited to reasonably necessary delays, and whether it applies to delays occasioned by the filing of posthearing briefs on motions. I A jury convicted petitioners of charges arising out of manufacture, possession, and distribution of controlled substances.[1]*323 The evidence at trial showed that in February and April 1980 petitioner Henderson, under the alias "Richard Martin," placed orders with a scientific supply company in Ohio for chemicals that could be used in the manufacture of illegal drugs. The orders attracted the attention of the Drug Enforcement Agency. Agents obtained a warrant from a United States Magistrate, authorizing installation of an electronic transmitter in one of the chemical containers. Henderson drove from California to Ohio, picked up the second order of chemicals on June 24, and headed west. Agents lost the tracking signal despite their following by both car and plane, only to receive it later in July from petitioner Freedman's house near Watsonville, California. A search pursuant to warrant on July 17 revealed an illicit drug factory. The last of the codefendants, Peter Bell, was arraigned on September 3, 1980.[2] The Speedy Trial Act requires that trial begin within 70 days of the latest indictment, information, or appearance — in this case, September 3. 18 U.S. C. § 3161(c)(1). A timely trial would have commenced on November 12, 1980, barring periods of excludable delay. Overlapping filings by petitioners and the Government, however, kept a suppression motion pending from its filing on November 3, 1980, through a hearing *324 on that motion on March 25, 1981.[3] The court deferred decision on the motion pending receipt of posthearing submissions from the parties, the last of which was filed on December 15, 1981. See App. 29-31. The District Court finally denied the motion to suppress on January 19, 1982. From January 25 to May 10, 1982, both parties filed additional motions before the District Court — on January 25 the Government moved to set the case for trial, and on March 23 petitioners moved to reconsider the motion to suppress. On February 3, the court held a hearing on the Government's motion and granted a continuance through April 21 to allow defense counsel to file a motion for reconsideration of the order denying the suppression motion.[4] After a hearing on May 10, the court denied petitioners' motion to reconsider the motion to suppress, and set a trial date of September 13, 1982. The court also entered an order excluding, for purposes of the Act, the time from May 10 to September 13 based on a provision of the Act that allows such exclusion by the Court to satisfy the "ends of justice." Id., at 32-33; see 18 U.S. C. § 3161(h)(8)(A).[5] *325 On July 23, 1982, Thornton filed a motion to dismiss the superseding indictment for violation of the Speedy Trial Act. The other two petitioners subsequently joined this motion. The District Judge held a hearing almost two months later, on September 8, and denied the motion from the bench on that date. He filed a memorandum and order outlining his reasons exactly 30 days later. At that time, the judge also entered an order excluding the time from October 8 to November 1, again based on the "interests of justice." 3 Record, Doc. Nos. 98-99. Trial commenced on November 1, 1982. Petitioners appealed their convictions, arguing, inter alia, that the District Court could exclude from their Speedy Trial Act computation only delays that were "reasonably necessary." 746 F.2d 619, 622 (CA9 1984). The Court of Appeals held that the statute "excludes delays resulting from pretrial motions without qualification." Ibid. The court noted that Congress had explicitly provided that the excludability of certain other delays depended on their reasonableness, but had not done so for delays from pretrial motions. Ibid. Judge Ferguson dissented, relying on the Act's legislative history and the interpretations of other Circuits. Id., at 625-626. We granted certiorari to resolve a conflict among the Circuits.[6] 474 U.S. 900 (1985). We now affirm. *326 II The Speedy Trial Act requires that a criminal trial must commence within 70 days of the latest of a defendant's indictment, information, or appearance, barring periods of excludable delay. United States v. Rojas-Contreras, 474 U.S. 231 (1985); see 18 U.S. C. § 3161(c)(1). Section 3161(h) (1)(F) (subsection (F)) excludes from these 70 days certain delays occasioned by the filing of pretrial motions: "(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: "(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to — ..... "(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" (emphasis added). A On its face, subsection (F) excludes "[a]ny period of delay" caused by "any pretrial motion," "from the filing of the motion through the conclusion of the hearing." The plain terms of the statute appear to exclude all time between the filing of and the hearing on a motion whether that hearing was prompt or not. Moreover, subsection (F) does not require *327 that a period of delay be "reasonable" to be excluded, although Congress clearly knew how to limit an exclusion: in § 3161(h)(7), Congress provided for exclusion of a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Apart from this single instance, every other provision in § 3161(h) provides for exclusion of "any period of delay."[7] The provision excludes, for example, all of the time consumed by an interlocutory appeal, § 3161(h)(1)(E), by a competency examination, § 3161(h)(1)(A), and by the defendant's unavailability, § 3161(h)(3)(A). As the Court of Appeals concluded: "The difference between (7) and (1) through (6) is a strong indication that exclusion of the periods defined in (1)-(6) was intended to be automatic." 746 F.2d, at 622. The legislative history of the 1979 Amendments to the Act supports this reading of subsection (F).[8] That history shows that Congress was aware of the breadth of the exclusion it was enacting in subsection (F). The Senate Judiciary Committee *328 acknowledged that "if basic standards for prompt consideration of pretrial motions are not developed," the liberalized 1979 Amendments to subsection (F) "could become a loophole which could undermine the whole Act." S. Rep. No. 96-212, p. 34 (1979). In its subsequent consideration of subsection (F), the House of Representatives did not qualify the exclusion in any way or limit such potential abuse by statute. Instead the House adopted the Senate's version "with the intention that potentially excessive and abusive use of this exclusion be precluded by district or circuit guidelines, rules, or procedures relating to motions practice." H. R. Rep. No. 96-390, p. 10 (1979). Congress clearly envisioned that any limitations should be imposed by circuit or district court rules rather than by the statute itself.[9] Such rules, developed pursuant to § 3166(f), should provide the assurance of a speedy disposition of pretrial motions. Petitioners largely concede these arguments and advance two other contentions for limiting subsection (F)'s exclusion to time that is "reasonably necessary" for the disposition of pretrial motions. First, they contend that the phrase "other prompt disposition" within subsection (F) implies that a district court may not unreasonably delay a criminal trial by deferring a hearing on a pretrial motion. Two of the Courts of Appeals that have limited the exclusion in subsection (F) to delays that are "reasonably necessary" have relied on this argument. United States v. Janik, 723 F.2d 537, 543 (CA7 1983); United States v. Cobb, 697 F.2d 38, 41-42 (CA2 1982). But a reading of subsection (F) in connection with § 3161 (h)(1)(J) (subsection (J)), which allows exclusion of up to 30 *329 days while the district court has a motion "under advisement," i. e., 30 days from the time the court receives all the papers it reasonably expects, undermines this conclusion. The phrase "prompt disposition" was intended to prevent a district court from using subsection (F) to exclude time after a motion is taken under advisement when that time fails to qualify for exclusion under subsection (J). Subsection (F), written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing: subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing. The second situation concerns motions that require no hearing and that result in a "prompt disposition." There, the promptness requirement was "intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing." S. Rep. No. 96-212, at 34. The "point at which time will cease to be excluded" is identified by subsection (J), which permits an exclusion of 30 days from the time a motion is actually "under advisement" by the court. Without the promptness requirement in subsection (F), a court could exclude time beyond subsection (J)'s 30-day "under advisement" provision simply by designating the additional period as time "from the filing of the motion" through its "disposition" under subsection (F). As the Senate Committee on the Judiciary explained: "In using the words `prompt disposition', the committee intends to make it clear that, in excluding time between filing and disposition on the papers, the Committee does not intend to permit circumvention of the 30-days, `under advisement' provision contained in Subsection (h)(1)(J). Indeed, if motions are so simple or routine that they do not require a hearing, necessary advisement time should be considerably less than 30 days." Ibid. We therefore conclude that for pretrial motions that require a hearing, the phrase "or other prompt disposition" in subsection *330 (F) does not imply that only "reasonably necessary" delays may be excluded between the time of filing of a motion and the conclusion of the hearing thereon. Petitioners' second argument rests on the sentence that immediately follows the extract quoted above: "Nor does the Committee intend that additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary." Ibid. (emphasis added). Four Courts of Appeals have relied on this legislative history to support their "reasonably necessary" qualification in subsection (F). United States v. Ray, 768 F.2d 991, 998 (CA8 1985); United States v. Mitchell, 723 F.2d 1040, 1047 (CA1 1983); United States v. Novak, 715 F.2d 810, 819 (CA3 1983), cert. denied sub nom. Ware v. United States, 465 U.S. 1030 (1984); United States v. Cobb, 697 F.2d 38, 44 (CA2 1982). Any qualification of subsection (F)'s exclusion based on this sentence, which appears in the paragraph discussing motions decided without a hearing, would be at odds with the plain language of the statute. It also would be contrary to other passages contained in both the House and Senate Reports that specifically concern the "hearings" provision of subsection (F). See supra, at 327-328. We therefore decline to read into subsection (F) a "reasonably necessary" qualification based on this single sentence from the Senate Report. We instead hold that Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is "reasonably necessary." B The remaining issue is whether subsection (F) excludes time after a hearing on a motion but before the district court receives all the submissions by counsel it needs to decide that motion. Cf. § 3161(h)(1) (excluding "[a]ny period of delay resulting *331 from other proceedings concerning the defendant"). Although the language of subsection (F) is not clear on this point, we are convinced that its structure, as well as reason, requires that such time be excluded. The provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion. See, e. g., S. Rep. No. 96-212, at 9-10. District courts often find it impossible to resolve motions on which hearings have been held until the parties have submitted posthearing briefs or additional factual materials, especially where the motion presents complicated issues. It would not have been sensible for Congress to exclude automatically all the time prior to the hearing on a motion and 30 days after the motion is taken under advisement, but not the time during which the court remains unable to rule because it is awaiting the submission by counsel of additional materials. Moreover, for motions decided solely on the papers, Congress has allowed exclusion of time during which the parties are filing their briefs. 18 U.S. C. §§ 3161(h)(1)(F), (J); see supra, at 328-329. It is consistent with this exclusion to exclude time when the court awaits the briefs and materials needed to resolve a motion on which a hearing has been held — motions that the Senate Judiciary Committee recognized as typically more difficult than motions decided on the papers. See S. Rep. No. 96-212, at 34. We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion. III We now calculate the number of nonexcludable days before petitioners' trial. The Act began to run on September 3, 1980, the date of arraignment of codefendant Bell. On October 22, 1980, the District Court entered — with the consent of the parties — a continuance through November 12. The District Court excluded that continuance from the Speedy Trial *332 Act's 70-day limit under § 3161(h)(8)(A) in "the interest of justice." App. 26-27; see 746 F.2d, at 623-624. That exclusion is not challenged in this Court. The motion to suppress was filed during this continuance, on November 3, 1980. App. 27. The hearing on this and subsequent motions was held on March 25, 1981. Id., at 28. This time is automatically excludable under § 3161(h)(1)(F). The court declined to reach a final decision on the suppression motion at that hearing because it needed further information. Id., at 28-29. The court did not receive all filings in connection with the motion until December 15, 1981, when the Government submitted its response to petitioners' memorandum and request for an evidentiary hearing. Id., at 31. That time is also excludable, plus 30 days for the District Court to take the matter under advisement. We therefore exclude the period from March 25, 1981, through January 14, 1982. On January 25, 1982, the Government filed a motion to set the case for trial, noticed for February 3. We need not decide whether this time is excludable under subsection (F) as it does not affect the disposition of this case. On February 3, the court continued the case until April 21, to afford defense counsel the opportunity to file a motion to reconsider the suppression ruling. Ibid. The District Court subsequently found that this time was excludable under § 3161(h)(8)(A) as a continuance necessary for the "interests of justice." Id., at 34.[10] On March 23, petitioners filed their motion for reconsideration. Under subsection (F), an exclusion for this pending motion ran from March 23 until the disposition by hearing on May 10. See App. 33. At that time, the court stated that it would exclude under § 3161(h)(8)(A) the time from May 10 to September 13, the new trial date, because of the difficulty of coordinating the schedules of five defense attorneys. The court entered a similar order on September 13 *333 that extended through the ultimate trial date of November 1, 1982. Neither of those orders is properly before us. As the case stands here, it presents 69 nonexcludable days of delay, and therefore the Speedy Trial Act was not violated.[11] IV The judgment of the Court of Appeals for the Ninth Circuit is affirmed. It is so ordered.

The Speedy Trial Act, 18 U.S. C. 3161 et seq. ( ed. and Supp. II), as amended in 1979 and in commands that a defendant be tried within 70 days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate. Section 3161(h)(1)(F) excludes from this time "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." This case requires us to decide the narrow questions whether that exclusion is limited to reasonably necessary delays, and whether it applies to delays occasioned by the filing of posthearing briefs on motions. I A jury convicted petitioners of charges arising out of manufacture, possession, and distribution of controlled substances.[1]*323 The evidence at trial showed that in February and April 1980 petitioner Henderson, under the alias "Richard Martin," placed orders with a scientific supply company in Ohio for chemicals that could be used in the manufacture of illegal drugs. The orders attracted the attention of the Drug Enforcement Agency. Agents obtained a warrant from a United States Magistrate, authorizing installation of an electronic transmitter in one of the chemical containers. Henderson drove from California to Ohio, picked up the second order of chemicals on June 24, and headed west. Agents lost the tracking signal despite their following by both car and plane, only to receive it later in July from petitioner Freedman's house near Watsonville, California. A search pursuant to warrant on July 17 revealed an illicit drug factory. The last of the codefendants, Peter Bell, was arraigned on September 3, 1980.[2] The Speedy Trial Act requires that trial begin within 70 days of the latest indictment, information, or appearance — in this case, September 3. 18 U.S. C. 3161(c)(1). A timely trial would have commenced on November 12, 1980, barring periods of excludable delay. Overlapping filings by petitioners and the Government, however, kept a suppression motion pending from its filing on November 3, 1980, through a hearing *324 on that motion on March 25, 1981.[3] The court deferred decision on the motion pending receipt of posthearing submissions from the parties, the last of which was filed on December 15, 1981. See App. 29-31. The District Court finally denied the motion to suppress on January 19, From January 25 to May 10, both parties filed additional motions before the District Court — on January 25 the Government moved to set the case for trial, and on March 23 petitioners moved to reconsider the motion to suppress. On February 3, the court held a hearing on the Government's motion and granted a continuance through April 21 to allow defense counsel to file a motion for reconsideration of the order denying the suppression motion.[4] After a hearing on May 10, the court denied petitioners' motion to reconsider the motion to suppress, and set a trial date of September 13, The court also entered an order excluding, for purposes of the Act, the time from May 10 to September 13 based on a provision of the Act that allows such exclusion by the Court to satisfy the "ends of justice." ; see 18 U.S. C. 3161(h)(8)(A).[5] *325 On July 23, Thornton filed a motion to dismiss the superseding indictment for violation of the Speedy Trial Act. The other two petitioners subsequently joined this motion. The District Judge held a hearing almost two months later, on September 8, and denied the motion from the bench on that date. He filed a memorandum and order outlining his reasons exactly 30 days later. At that time, the judge also entered an order excluding the time from October 8 to November 1, again based on the "interests of justice." 3 Record, Doc. Nos. 98-99. Trial commenced on November 1, Petitioners appealed their convictions, arguing, inter alia, that the District Court could exclude from their Speedy Trial Act computation only delays that were "reasonably necessary." The Court of Appeals held that the statute "excludes delays resulting from pretrial motions without qualification." The court noted that Congress had explicitly provided that the excludability of certain other delays depended on their reasonableness, but had not done so for delays from pretrial motions. Judge Ferguson dissented, relying on the Act's legislative history and the interpretations of other Circuits. We granted certiorari to resolve a conflict among the Circuits.[6] We now affirm. *326 II The Speedy Trial Act requires that a criminal trial must commence within 70 days of the latest of a defendant's indictment, information, or appearance, barring periods of excludable delay. United ; see 18 U.S. C. 3161(c)(1). Section 3161(h) (1)(F) (subsection (F)) excludes from these 70 days certain delays occasioned by the filing of pretrial motions: "(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: "(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to — "(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" A On its face, subsection (F) excludes "[a]ny period of delay" caused by "any pretrial motion," "from the filing of the motion through the conclusion of the hearing." The plain terms of the statute appear to exclude all time between the filing of and the hearing on a motion whether that hearing was prompt or not. Moreover, subsection (F) does not require *327 that a period of delay be "reasonable" to be excluded, although Congress clearly knew how to limit an exclusion: in 3161(h)(7), Congress provided for exclusion of a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Apart from this single instance, every other provision in 3161(h) provides for exclusion of "any period of delay."[7] The provision excludes, for example, all of the time consumed by an interlocutory appeal, 3161(h)(1)(E), by a competency examination, 3161(h)(1)(A), and by the defendant's unavailability, 3161(h)(3)(A). As the Court of Appeals concluded: "The difference between (7) and (1) through (6) is a strong indication that exclusion of the periods defined in (1)-(6) was intended to be automatic." 746 F.2d, at The legislative history of the 1979 Amendments to the Act supports this reading of subsection (F).[8] That history shows that Congress was aware of the breadth of the exclusion it was enacting in subsection (F). The Senate Judiciary Committee *328 acknowledged that "if basic standards for prompt consideration of pretrial motions are not developed," the liberalized 1979 Amendments to subsection (F) "could become a loophole which could undermine the whole Act." S. Rep. No. 96-212, p. 34 (1979). In its subsequent consideration of subsection (F), the House of Representatives did not qualify the exclusion in any way or limit such potential abuse by statute. Instead the House adopted the Senate's version "with the intention that potentially excessive and abusive use of this exclusion be precluded by district or circuit guidelines, rules, or procedures relating to motions practice." H. R. Rep. No. 96-390, p. 10 (1979). Congress clearly envisioned that any limitations should be imposed by circuit or district court rules rather than by the statute itself.[9] Such rules, developed pursuant to 3166(f), should provide the assurance of a speedy disposition of pretrial motions. Petitioners largely concede these arguments and advance two other contentions for limiting subsection (F)'s exclusion to time that is "reasonably necessary" for the disposition of pretrial motions. First, they contend that the phrase "other prompt disposition" within subsection (F) implies that a district court may not unreasonably delay a criminal trial by deferring a hearing on a pretrial motion. Two of the Courts of Appeals that have limited the exclusion in subsection (F) to delays that are "reasonably necessary" have relied on this argument. United ; United But a reading of subsection (F) in connection with 3161 (h)(1)(J) (subsection (J)), which allows exclusion of up to 30 *329 days while the district court has a motion "under advisement," i. e., 30 days from the time the court receives all the papers it reasonably expects, undermines this conclusion. The phrase "prompt disposition" was intended to prevent a district court from using subsection (F) to exclude time after a motion is taken under advisement when that time fails to qualify for exclusion under subsection (J). Subsection (F), written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing: subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing. The second situation concerns motions that require no hearing and that result in a "prompt disposition." There, the promptness requirement was "intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing." S. Rep. No. 96-212, The "point at which time will cease to be excluded" is identified by subsection (J), which permits an exclusion of 30 days from the time a motion is actually "under advisement" by the court. Without the promptness requirement in subsection (F), a court could exclude time beyond subsection (J)'s 30-day "under advisement" provision simply by designating the additional period as time "from the filing of the motion" through its "disposition" under subsection (F). As the Senate Committee on the Judiciary explained: "In using the words `prompt disposition', the committee intends to make it clear that, in excluding time between filing and disposition on the papers, the Committee does not intend to permit circumvention of the 30-days, `under advisement' provision contained in Subsection (h)(1)(J). Indeed, if motions are so simple or routine that they do not require a hearing, necessary advisement time should be considerably less than 30 days." We therefore conclude that for pretrial motions that require a hearing, the phrase "or other prompt disposition" in subsection *330 (F) does not imply that only "reasonably necessary" delays may be excluded between the time of filing of a motion and the conclusion of the hearing thereon. Petitioners' second argument rests on the sentence that immediately follows the extract quoted above: "Nor does the Committee intend that additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary." Four Courts of Appeals have relied on this legislative history to support their "reasonably necessary" qualification in subsection (F). United ; United ; United cert. denied sub nom. ; United Any qualification of subsection (F)'s exclusion based on this sentence, which appears in the paragraph discussing motions decided without a hearing, would be at odds with the plain language of the statute. It also would be contrary to other passages contained in both the House and Senate Reports that specifically concern the "hearings" provision of subsection (F). See We therefore decline to read into subsection (F) a "reasonably necessary" qualification based on this single sentence from the Senate Report. We instead hold that Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is "reasonably necessary." B The remaining issue is whether subsection (F) excludes time after a hearing on a motion but before the district court receives all the submissions by counsel it needs to decide that motion. Cf. 3161(h)(1) (excluding "[a]ny period of delay resulting *331 from other proceedings concerning the defendant"). Although the language of subsection (F) is not clear on this point, we are convinced that its structure, as well as reason, requires that such time be excluded. The provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion. See, e. g., S. Rep. No. 96-212, at 9-10. District courts often find it impossible to resolve motions on which hearings have been held until the parties have submitted posthearing briefs or additional factual materials, especially where the motion presents complicated issues. It would not have been sensible for Congress to exclude automatically all the time prior to the hearing on a motion and 30 days after the motion is taken under advisement, but not the time during which the court remains unable to rule because it is awaiting the submission by counsel of additional materials. Moreover, for motions decided solely on the papers, Congress has allowed exclusion of time during which the parties are filing their briefs. 18 U.S. C. 3161(h)(1)(F), (J); see It is consistent with this exclusion to exclude time when the court awaits the briefs and materials needed to resolve a motion on which a hearing has been held — motions that the Senate Judiciary Committee recognized as typically more difficult than motions decided on the papers. See S. Rep. No. 96-212, We therefore hold that subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion. III We now calculate the number of nonexcludable days before petitioners' trial. The Act began to run on September 3, 1980, the date of arraignment of codefendant Bell. On October 22, 1980, the District Court entered — with the consent of the parties — a continuance through November 12. The District Court excluded that continuance from the Speedy Trial *332 Act's 70-day limit under 3161(h)(8)(A) in "the interest of justice." App. 26-27; see -624. That exclusion is not challenged in this Court. The motion to suppress was filed during this continuance, on November 3, 1980. App. 27. The hearing on this and subsequent motions was held on March 25, 1981. This time is automatically excludable under 3161(h)(1)(F). The court declined to reach a final decision on the suppression motion at that hearing because it needed further information. -29. The court did not receive all filings in connection with the motion until December 15, 1981, when the Government submitted its response to petitioners' memorandum and request for an evidentiary hearing. That time is also excludable, plus 30 days for the District Court to take the matter under advisement. We therefore exclude the period from March 25, 1981, through January 14, On January 25, the Government filed a motion to set the case for trial, noticed for February 3. We need not decide whether this time is excludable under subsection (F) as it does not affect the disposition of this case. On February 3, the court continued the case until April 21, to afford defense counsel the opportunity to file a motion to reconsider the suppression ruling. The District Court subsequently found that this time was excludable under 3161(h)(8)(A) as a continuance necessary for the "interests of justice."[10] On March 23, petitioners filed their motion for reconsideration. Under subsection (F), an exclusion for this pending motion ran from March 23 until the disposition by hearing on May 10. See App. 33. At that time, the court stated that it would exclude under 3161(h)(8)(A) the time from May 10 to September 13, the new trial date, because of the difficulty of coordinating the schedules of five defense attorneys. The court entered a similar order on September 13 *333 that extended through the ultimate trial date of November 1, Neither of those orders is properly before us. As the case stands here, it presents 69 nonexcludable days of delay, and therefore the Speedy Trial Act was not violated.[11] IV The judgment of the Court of Appeals for the Ninth Circuit is affirmed. It is so ordered.

Justice Breyer

majority

Small v. United States

https://www.courtlistener.com/opinion/142890/small-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/142890/

2004-042

The United States Criminal Code makes it "unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm." 18 U.S.C. § 922(g)(1) (emphasis added). The question before us focuses upon the words "convicted in any court." Does this phrase apply only to convictions entered in any domestic court or to foreign convictions as well? We hold that the phrase encompasses only domestic, not foreign, convictions. I In 1994 petitioner, Gary Small, was convicted in a Japanese court of having tried to smuggle several pistols, a rifle, and ammunition into Japan. Small was sentenced to five years' imprisonment. 183 F. Supp. 2d 755, 757, n. 3 (WD Pa. 2002). After his release, Small returned to the United States, where he bought a gun from a Pennsylvania gun dealer. Federal authorities subsequently charged Small under the "unlawful gun possession" statute here at issue. 333 F.3d 425, 426 (CA3 2003). Small pleaded guilty while reserving the right to challenge his conviction on the ground that his earlier conviction, being a foreign conviction, fell outside the scope of the illegal gun possession statute. The Federal District Court rejected Small's argument, as did the Court of Appeals for the Third Circuit. 183 F. Supp. 2d, at 759; 333 F.3d, at 427, n. 2. Because the Circuits disagree about the matter, we granted certiorari. Compare United States v. Atkins, 872 F.2d 94, 96 (CA4 1989) ("convicted in any court" includes foreign convictions); United States v. Winson, 793 F.2d 754, 757-759 (CA6 1986) (same), with United States v. Gayle, 342 F.3d 89, 95 (CA2 2003) ("convicted in any court" does not include foreign convictions); United States v. Concha, 233 F.3d 1249, 1256 (CA10 2000) (same). *388 II A The question before us is whether the statutory reference "convicted in any court" includes a conviction entered in a foreign court. The word "any" considered alone cannot answer this question. In ordinary life, a speaker who says, "I'll see any film," may or may not mean to include films shown in another city. In law, a legislature that uses the statutory phrase "`any person'" may or may not mean to include "`persons'" outside "the jurisdiction of the state." See, e.g., United States v. Palmer, 3 Wheat. 610, 631 (1818) (Marshall, C. J.) ("[G]eneral words," such as the word "`any,'" must "be limited" in their application "to those objects to which the legislature intended to apply them"); Nixon v. Missouri Municipal League, 541 U.S. 125, 132 (2004) ("`any'" means "different things depending upon the setting"); United States v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994) ("[R]espondent errs in placing dispositive weight on the broad statutory reference to `any' law enforcement officer or agency without considering the rest of the statute"); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 15-16 (1981) (it is doubtful that the phrase "`any statute'" includes the very statute in which the words appear); Flora v. United States, 362 U.S. 145, 149 (1960) ("`[A]ny sum,'" while a "catchall" phrase, does not "define what it catches"). Thus, even though the word "any" demands a broad interpretation, see, e.g., United States v. Gonzales, 520 U.S. 1, 5 (1997), we must look beyond that word itself. In determining the scope of the statutory phrase we find help in the "commonsense notion that Congress generally legislates with domestic concerns in mind." Smith v. United States, 507 U.S. 197, 204, n. 5 (1993). This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, *389 application. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949); see also Palmer, supra, at 631 ("The words `any person or persons,' are broad enough to comprehend every human being" but are "limited to cases within the jurisdiction of the state"); EEOC v. Arabian American Oil Co., 499 U.S. 244, 249-251 (1991). That presumption would apply, for example, were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application does not apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase "convicted in any court" here. For one thing, the phrase describes one necessary portion of the "gun possession" activity that is prohibited as a matter of domestic law. For another, considered as a group, foreign convictions differ from domestic convictions in important ways. Past foreign convictions for crimes punishable by more than one year's imprisonment may include a conviction for conduct that domestic laws would permit, for example, for engaging in economic conduct that our society might encourage. See, e.g., Art. 153 of the Criminal Code of the Russian Soviet Federated Socialist Republic, in Soviet Criminal Law and Procedure 171 (H. Berman & J. Spindler transls. 2d ed. 1972) (criminalizing "Private Entrepreneurial Activity"); Art. 153, id., at 172 (criminalizing "Speculation," which is defined as "the buying up and reselling of goods or any other articles for the purpose of making a profit"); cf., e.g., Gaceta Oficial de la Republica de Cuba, ch. II, Art. 103, p. 68 (Dec. 30, 1987) (forbidding propaganda that incites against the social order, international solidarity, or the Communist state). They would include a conviction from a legal system that is inconsistent with an American understanding of fairness. See, e.g., U.S. Dept. of State, Country Reports on Human Rights Practices for 2003, Submitted to the House Committee on International Relations and the Senate Committee on Foreign Relations, 108th Cong., 2d Sess., 702-705, *390 1853, 2023 (Joint Comm. Print 2004) (describing failures of "due process" and citing examples in which "the testimony of one man equals that of two women"). And they would include a conviction for conduct that domestic law punishes far less severely. See, e.g., Singapore Vandalism Act, ch. 108, §§ 2, 3, III Statutes of Republic of Singapore, pp. 257-258 (imprisonment for up to three years for an act of vandalism). Thus, the key statutory phrase "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue. In addition, it is difficult to read the statute as asking judges or prosecutors to refine its definitional distinctions where foreign convictions are at issue. To somehow weed out inappropriate foreign convictions that meet the statutory definition is not consistent with the statute's language; it is not easy for those not versed in foreign laws to accomplish; and it would leave those previously convicted in a foreign court (say, of economic crimes) uncertain about their legal obligations. Cf. 1 United States Sentencing Commission, Guidelines Manual § 4A1.2(h) (Nov. 2004) ("[S]entences resulting from foreign convictions are not counted" as a "prior sentence" for criminal history purposes). These considerations, suggesting significant differences between foreign and domestic convictions, do not dictate our ultimate conclusion. Nor do they create a "clear statement" rule, imposing upon Congress a special burden of specificity. See post, at 399 (THOMAS, J., dissenting). They simply convince us that we should apply an ordinary assumption about the reach of domestically oriented statutes here — an assumption that helps us determine Congress' intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance. Cf. ibid. We consequently assume a congressional intent that the phrase *391 "convicted in any court" applies domestically, not extraterritorially. But, at the same time, we stand ready to revise this assumption should statutory language, context, history, or purpose show the contrary. B We have found no convincing indication to the contrary here. The statute's language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute's language creates anomalies. For example, the statute creates an exception that allows gun possession despite a prior conviction for an antitrust or business regulatory crime. 18 U.S.C. § 921(a)(20)(A). In doing so, the exception speaks of "Federal or State" antitrust or regulatory offenses. Ibid. If the phrase "convicted in any court" generally refers only to domestic convictions, this language causes no problem. But if "convicted in any court" includes foreign convictions, the words "Federal or State" prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue. An individual convicted of, say, a Canadian antitrust offense could not lawfully possess a gun, Combines Investigation Act, 2 R. S. C. 1985, ch. C-34, §§ 61(6), (9) (1985), but a similar individual convicted of, say, a New York antitrust offense, could lawfully possess a gun. For example, the statute specifies that predicate crimes include "a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). Again, the language specifies that these predicate crimes include only crimes that are "misdemeanor[s] under Federal or State law." § 921(a)(33)(A). If "convicted in any court" refers only to domestic convictions, this language creates no problem. If the phrase also refers to *392 foreign convictions, the language creates an apparently senseless distinction between (covered) domestic relations misdemeanors committed within the United States and (uncovered) domestic relations misdemeanors committed abroad. For example, the statute provides an enhanced penalty where unlawful gun possession rests upon three predicate convictions for a "serious drug offense." § 924(e)(1) (2000 ed., Supp. II). Again the statute defines the relevant drug crimes through reference to specific federal crimes and with the words "offense under State law." §§ 924(e)(2)(A)(i), (ii) (2000 ed.). If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates an apparently senseless distinction between drug offenses committed within the United States (potentially producing enhanced punishments) and similar offenses committed abroad (not producing enhanced punishments). For example, the statute provides that offenses that are punishable by a term of imprisonment of up to two years, and characterized under state law as misdemeanors, are not predicate crimes. § 921(20). This exception is presumably based on the determination that such state crimes are not sufficiently serious or dangerous so as to preclude an individual from possessing a firearm. If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates another apparently senseless distinction between less serious crimes (misdemeanors punishable by more than one year's imprisonment) committed within the United States (not predicate crimes) and similar offenses committed abroad (predicate crimes). These illustrative examples taken together suggest that Congress did not consider whether the generic phrase "convicted in any court" applies to domestic as well as foreign convictions. *393 The statute's lengthy legislative history confirms the fact that Congress did not consider whether foreign convictions should or should not serve as a predicate to liability under the provision here at issue. Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. See S. Rep. No. 1501, 90th Cong., 2d Sess., 31 (1968) (defining predicate crimes in terms of "Federal" crimes "punishable by a term of imprisonment exceeding one year" and crimes "determined by the laws of the State to be a felony"). And the Conference Committee ultimately rejected this version in favor of language that speaks of those "convicted in any court of, a crime punishable by a term of imprisonment exceeding one year," § 928(g)(1). See H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 28-29 (1968). But the history does not suggest that this language change reflected a congressional view on the matter before us. Rather, the enacted version is simpler and it avoids potential difficulties arising out of the fact that States may define the term "felony" differently. And as far as the legislative history is concerned, these latter virtues of the new language fully explain the change. Thus, those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue. Others will not be tempted to use or to discuss the history at all. But cf. post, at 406 (THOMAS, J., dissenting). The statute's purpose does offer some support for a reading of the phrase that includes foreign convictions. As the Government points out, Congress sought to "`keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.'" Brief for United States 16 (quoting Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983)); see also Lewis v. United States, 445 U.S. 55, 60-62, 66 (1980); Huddleston v. United States, 415 U.S. 814, 824 *394 (1974). And, as the dissent properly notes, post, at 402-403, one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States. The force of this argument is weakened significantly, however, by the empirical fact that, according to the Government, since 1968, there have probably been no more than "10 to a dozen" instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. Tr. of Oral Arg. 32. This empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter. C In sum, we have no reason to believe that Congress considered the added enforcement advantages flowing from inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns. See supra, at 389. The statute itself and its history offer only congressional silence. Given the reasons for disfavoring an inference of extraterritorial coverage from a statute's total silence and our initial assumption against such coverage, see supra, at 390-391, we conclude that the phrase "convicted in any court" refers only to domestic courts, not to foreign courts. Congress, of course, remains free to change this conclusion through statutory amendment. For these reasons, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

The United States Criminal Code makes it "unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year to possess any firearm." (g)(1) The question before us focuses upon the words "convicted in any court." Does this phrase apply only to convictions entered in any domestic court or to foreign convictions as well? We hold that the phrase encompasses only domestic, not foreign, convictions. I In 1994 petitioner, Gary Small, was convicted in a Japanese court of having tried to smuggle several pistols, a rifle, and ammunition into Japan. Small was sentenced to five years' imprisonment. After his release, Small returned to the United States, where he bought a gun from a Pennsylvania gun dealer. Federal authorities subsequently charged Small under the "unlawful gun possession" statute here at issue. Small pleaded guilty while reserving the right to challenge his conviction on the ground that his earlier conviction, being a foreign conviction, fell outside the scope of the illegal gun possession statute. The Federal District Court rejected Small's argument, as did the Court of Appeals for the Third ; n. 2. Because the Circuits disagree about the matter, we granted certiorari. Compare United ; United with United ; United *388 II A The question before us is whether the statutory reference "convicted in any court" includes a conviction entered in a foreign court. The word "any" considered alone cannot answer this question. In ordinary life, a speaker who says, "I'll see any film," may or may not mean to include films shown in another city. In law, a legislature that uses the statutory phrase "`any person'" may or may not mean to include "`persons'" outside "the jurisdiction of the state." See, e.g., United ("[G]eneral words," such as the word "`any,'" must "be limited" in their application "to those objects to which the legislature intended to apply them"); ; United ; Middlesex County Sewerage ; (10) Thus, even though the word "any" demands a broad interpretation, see, e.g., United we must look beyond that word itself. In determining the scope of the statutory phrase we find help in the "commonsense notion that Congress generally legislates with domestic concerns in mind." 07 U.S. 197, 204, n. This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, *389 application. See Foley Bros., 28 ; see also at ; 249-21 That presumption would apply, for example, were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application does not apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase "convicted in any court" here. For one thing, the phrase describes one necessary portion of the "gun possession" activity that is prohibited as a matter of domestic law. For another, considered as a group, foreign convictions differ from domestic convictions in important ways. Past foreign convictions for crimes punishable by more than one year's imprisonment may include a conviction for conduct that domestic laws would permit, for example, for engaging in economic conduct that our society might encourage. See, e.g., Art. 13 of the Criminal Code of the Russian Soviet Federated Socialist Republic, in Soviet Criminal Law and Procedure 171 (H. Berman & J. Spindler transls. 2d ed. 1972) (criminalizing "Private Entrepreneurial Activity"); Art. 13, ; cf., e.g., Gaceta Oficial de la Republica de Cuba, ch. II, Art. 103, p. 68 (Dec. 30, 1987) (forbidding propaganda that incites against the social order, international solidarity, or the Communist state). They would include a conviction from a legal system that is inconsistent with an American understanding of fairness. See, e.g., U.S. Dept. of State, Country Reports on Human Rights Practices for Submitted to the House Committee on International Relations and the Senate Committee on Foreign Relations, 108th Cong., 2d Sess., 702-70, *390 183, 2023 (describing failures of "due process" and citing examples in which "the testimony of one man equals that of two women"). And they would include a conviction for conduct that domestic law punishes far less severely. See, e.g., Singapore Vandalism Act, ch. 108, 2, 3, III Statutes of Republic of Singapore, pp. 27-28 (imprisonment for up to three years for an act of vandalism). Thus, the key statutory phrase "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" somewhat less reliably identifies dangerous individuals for the purposes of U.S. law where foreign convictions, rather than domestic convictions, are at issue. In addition, it is difficult to read the statute as asking judges or prosecutors to refine its definitional distinctions where foreign convictions are at issue. To somehow weed out inappropriate foreign convictions that meet the statutory definition is not consistent with the statute's language; it is not easy for those not versed in foreign laws to accomplish; and it would leave those previously convicted in a foreign court (say, of economic crimes) uncertain about their legal obligations. Cf. 1 United States Sentencing Commission, Guidelines Manual 4A1.2(h) ("[S]entences resulting from foreign convictions are not counted" as a "prior sentence" for criminal history purposes). These considerations, suggesting significant differences between foreign and domestic convictions, do not dictate our ultimate conclusion. Nor do they create a "clear statement" rule, imposing upon Congress a special burden of specificity. See post, at 399 (THOMAS, J., dissenting). They simply convince us that we should apply an ordinary assumption about the reach of domestically oriented statutes here — an assumption that helps us determine Congress' intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance. Cf. We consequently assume a congressional intent that the phrase *391 "convicted in any court" applies domestically, not extraterritorially. But, at the same time, we stand ready to revise this assumption should statutory language, context, history, or purpose show the contrary. B We have found no convincing indication to the contrary here. The statute's language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute's language creates anomalies. For example, the statute creates an exception that allows gun possession despite a prior conviction for an antitrust or business regulatory crime. 18 U.S.C. 921(a)(20)(A). In doing so, the exception speaks of "Federal or State" antitrust or regulatory offenses. If the phrase "convicted in any court" generally refers only to domestic convictions, this language causes no problem. But if "convicted in any court" includes foreign convictions, the words "Federal or State" prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue. An individual convicted of, say, a Canadian antitrust offense could not lawfully possess a gun, Combines Investigation Act, 2 R. S. C. 198, ch. C-34, 61(6), (9) (198), but a similar individual convicted of, say, a New York antitrust offense, could lawfully possess a gun. For example, the statute specifies that predicate crimes include "a misdemeanor crime of domestic violence." (g)(9). Again, the language specifies that these predicate crimes include only crimes that are "misdemeanor[s] under Federal or State law." 921(a)(33)(A). If "convicted in any court" refers only to domestic convictions, this language creates no problem. If the phrase also refers to *392 foreign convictions, the language creates an apparently senseless distinction between (covered) domestic relations misdemeanors committed within the United States and (uncovered) domestic relations misdemeanors committed abroad. For example, the statute provides an enhanced penalty where unlawful gun possession rests upon three predicate convictions for a "serious drug offense." 924(e)(1) ( ed., Supp. II). Again the statute defines the relevant drug crimes through reference to specific federal crimes and with the words "offense under State law." 924(e)(2)(A)(i), (ii) ( ed.). If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates an apparently senseless distinction between drug offenses committed within the United States (potentially producing enhanced punishments) and similar offenses committed abroad (not producing enhanced punishments). For example, the statute provides that offenses that are punishable by a term of imprisonment of up to two years, and characterized under state law as misdemeanors, are not predicate crimes. 921(20). This exception is presumably based on the determination that such state crimes are not sufficiently serious or dangerous so as to preclude an individual from possessing a firearm. If "convicted in any court" refers only to domestic convictions, this language creates no problem. But if the phrase also refers to foreign convictions, the language creates another apparently senseless distinction between less serious crimes (misdemeanors punishable by more than one year's imprisonment) committed within the United States (not predicate crimes) and similar offenses committed abroad (predicate crimes). These illustrative examples taken together suggest that Congress did not consider whether the generic phrase "convicted in any court" applies to domestic as well as foreign convictions. *393 The statute's lengthy legislative history confirms the fact that Congress did not consider whether foreign convictions should or should not serve as a predicate to liability under the provision here at issue. Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. See S. Rep. No. 101, 90th Cong., 2d Sess., 31 (18) (defining predicate crimes in terms of "Federal" crimes "punishable by a term of imprisonment exceeding one year" and crimes "determined by the laws of the State to be a felony"). And the Conference Committee ultimately rejected this version in favor of language that speaks of those "convicted in any court of, a crime punishable by a term of imprisonment exceeding one year," 928(g)(1). See H.R. Conf. Rep. No. 16, 90th Cong., 2d Sess., 28-29 (18). But the history does not suggest that this language change reflected a congressional view on the matter before us. Rather, the enacted version is simpler and it avoids potential difficulties arising out of the fact that States may define the term "felony" differently. And as far as the legislative history is concerned, these latter virtues of the new language fully explain the change. Thus, those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue. Others will not be tempted to use or to discuss the history at all. But cf. post, at 406 (THOMAS, J., dissenting). The statute's purpose does offer some support for a reading of the phrase that includes foreign convictions. As the Government points out, Congress sought to "`keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.'" Brief for United States 16 ); see also 44 U.S. ; 41 U.S. 814, And, as the dissent properly notes, post, at 402-403, one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States. The force of this argument is weakened significantly, however, by the empirical fact that, according to the Government, since 18, there have probably been no more than "10 to a dozen" instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. Tr. of Oral Arg. 32. This empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter. C In sum, we have no reason to believe that Congress considered the added enforcement advantages flowing from inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns. See The statute itself and its history offer only congressional silence. Given the reasons for disfavoring an inference of extraterritorial coverage from a statute's total silence and our initial assumption against such coverage, see we conclude that the phrase "convicted in any court" refers only to domestic courts, not to foreign courts. Congress, of course, remains free to change this conclusion through statutory amendment. For these reasons, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

Justice Ginsburg

majority

United States v. Williams

https://www.courtlistener.com/opinion/117926/united-states-v-williams/

https://www.courtlistener.com/api/rest/v3/clusters/117926/

1994-050

This case presents the question whether respondent Lori Williams, who paid a tax under protest to remove a lien on her property, has standing to bring a refund action under 28 U.S. C. § 1346(a)(1), even though the tax she paid was assessed against a third party. We hold that respondent has standing to sue for a refund. Respondent's suit falls within the broad language of § 1346(a)(1), which gives federal courts jurisdiction to hear "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected," and only a strained reading of other relevant provisions would bar her suit. She had no realistic alternative to payment of a tax she did not owe,[1] and we do not believe Congress intended to leave parties in respondent's position without a remedy. I Before this litigation commenced, respondent Lori Williams and her then-husband Jerrold Rabin jointly owned their home. As part owner of a restaurant, Rabin personally incurred certain tax liabilities, which he failed to satisfy. In June 1987 and March 1988, the Government assessed Rabin close to $15,000 for these liabilities, and thereby placed a lien in the assessed amount on all his property, including his interest in the house. See 26 U.S. C. § 6321 ("If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount . . . shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person."). The Government has not alleged that Williams is personally liable for these or any subsequent assessments. *530 Meanwhile, Rabin and Williams divided their marital property in contemplation of divorce. Williams did not have notice of the lien when Rabin deeded his interest in the house to her on October 25, 1988, for the Government did not file its tax lien until November 10, 1988. As consideration for the house, Williams assumed three liabilities for Rabin (none of them tax liabilities) totaling almost $650,000. App. 7-8 (Statement of Uncontroverted Facts presented by attorneys for United States). In the ensuing months, the Government made further assessments on Rabin in excess of $26,000, but did not file notice of them until June 22, 1989. Williams entered a contract on May 9, 1989, to sell the 9, Id., at 8. house, and agreed to a closing date of July 3. One week before the closing, the Government gave actual notice to Williams and the purchaser of over $41,000 in tax liens which, it claimed, were valid against the property or proceeds of the sale. The purchaser threatened to sue Williams if the sale did not go through on schedule. Believing she had no realistic alternative—none having been suggested by the Government—Williams, under protest, authorized disbursement of $41,937 from the sale proceeds directly to the Internal Revenue Service so that she could convey clear title. After the Government denied Williams' claim for an administrative refund, she filed suit in the United States District Court for the Central District of California, claiming she had taken the property free of the Government's lien under 26 U.S. C. § 6323(a) (absent proper notice, tax lien not valid against purchaser). To enforce her rights, she invoked 28 U.S. C. § 1346(a)(1), which waives the Government's sovereign immunity from suit by authorizing federal courts to adjudicate "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected." In a trial on stipulated facts, the Government maintained that it was irrelevant whether the Government had a right to Williams' money; her plea could not be entertained, the Government *531 insisted, because she lacked standing to seek a refund under § 1346(a)(1).[2] According to the Government, that provision authorizes actions only by the assessed party, i. e., Rabin. The District Court accepted this jurisdictional argument, relying on precedent set in the Fifth and Seventh Circuits.[3] The United States Court of Appeals for the Ninth Circuit reversed, 24 F.3d 1143, 1145 (1994), guided by Fourth Circuit precedent.[4] To resolve this conflict among the Courts of Appeals, we granted certiorari, 513 U.S. 959 (1994), and now affirm. II The question before us is whether the waiver of sovereign immunity in § 1346(a)(1) authorizes a refund suit by a party who, though not assessed a tax, paid the tax under protest to remove a federal tax lien from her property. In resolving this question, we may not enlarge the waiver beyond the purview of the statutory language. Department of Energy v. Ohio, 503 U.S. 607, 614-616 (1992). Our task is to discern the "unequivocally expressed" intent of Congress, construing ambiguities in favor of immunity. United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992) (internal quotation marks omitted). To fathom the congressional instruction, we turn first to the language of § 1346(a). This provision does not say that only the person assessed may sue. Instead, the statute uses broad language: *532 "The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: "(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internalrevenue laws." 28 U.S. C. § 1346(a) (1988 ed. and Supp. V) (emphasis added). Williams' plea to recover a tax "erroneously . . . collected" falls squarely within this language. The broad language of § 1346(a)(1) mirrors the broad common-law remedy the statute displaced: actions of assumpsit for money had and received, once brought against the tax collector personally rather than against the United States. See Ferguson, Jurisdictional Problems in Federal Tax Controversies, 48 Iowa L. Rev. 312, 327 (1963). Assumpsit afforded a remedy to those who, like Williams, had paid money they did not owe—typically as a result of fraud, duress, or mistake. See H. Ballantine, Shipman on CommonLaw Pleading 163-164 (3d ed. 1923). Assumpsit refund actions were unavailable to volunteers, a limit that would not have barred Williams because she paid under protest. See Philadelphia v. Collector, 5 Wall. 720, 731-732 (1867) ("Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or under protest, or with notice that he intends to bring suit to test the validity of the claim, he may recover it back . . . ."). III Acknowledging the evident breadth of § 1346(a)(1), the Government relies on the interaction of three other provisions to narrow the waiver of sovereign immunity. The Government argues: Under 26 U.S. C. § 7422, a party may *533 not bring a refund action without first exhausting administrative remedies; under 26 U.S. C. § 6511, only a "taxpayer" may exhaust; under 26 U.S. C. § 7701(a)(14), Williams is not a taxpayer. It is undisputed that § 7422 requires administrative exhaustion.[5] If Williams iseligible to exhaust, she did so by filing an administrative claim. But to show that Williams is not eligible to exhaust, the Government relies first on 26 U.S. C. § 6511(a), which provides in part: "(a) Period of limitation on filing claim "Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid." (Emphasis added.) From the statute's use of the term "taxpayer," rather than "person who paid the tax," the Government concludes that only a "taxpayer" may file for administrative relief under § 7422, and thereafter pursue a refund action under 28 U.S. C. § 1346(a)(1).[6] Then, to show that Williams is not *534 a "taxpayer," the Government relies on 26 U.S. C. § 7701 (a)(14), which defines "taxpayer" as "any person subject to any internal revenue tax." According to the Government, a party who pays a tax is not "subject to" it unless she is the one assessed. The Government's argument fails at both statutory junctures. First, the word "taxpayer" in § 6511(a)—the provision governing administrative claims—cannot bear the weight the Government puts on it. This provision's plain terms provide only a deadline for filing for administrative relief,[7] not a limit on who may file. To read the term "taxpayer" as implicitly limiting administrative relief to the party assessed is inconsistent with other provisions of the refund scheme, which expressly contemplate refunds to parties other than the one assessed. Thus, in authorizing the Secretary to award a credit or refund "[i]n the case of any overpayment," 26 U.S. C. § 6402(a) describes the recipient not as the "taxpayer," but as "the person who made the overpayment." Similarly, in providing for credits and refunds for sales taxes and taxes on tobacco and alcohol, 26 U.S. C. § 6416(a) and 26 U.S. C. § 6419(a) describe the recipient as "the person who paid the tax." *535 Further, even if, as the Government contends, only "taxpayers" could seek administrative relief under § 6511, the Government's claim that Williams is not at this point a "taxpayer" is unpersuasive. Section 7701(a)(14), defining "taxpayer," informs us that "[w]hen used in [the Internal Revenue Code], where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, . . . [t]he term `taxpayer' means any person subject to any internal revenue tax."[8] That definition does not exclude Williams. The Government reads the definition as if it said "any person who is assessed any internal revenue tax," but these are not Congress' words. The general phrase "subject to" is broader than the specific phrase "assessed" and, in the tax collection context before us, we think it is broad enough to include Williams. In placing a lien on her home and then accepting her tax payment under protest, the Government surely subjected Williams to a tax, even though she was not the assessed party. In support of its reading of "taxpayer," the Government cites our observation in Colorado Nat. Bank of Denver v. Bedford, 310 U.S. 41, 52 (1940), that "[t]he taxpayer is the person ultimately liable for the tax itself." The Government takes this language out of context. We were not interpreting the term "taxpayer" in the Internal Revenue Code, but deciding whether a state tax scheme was consistent with federal law. In particular, we were determining whether Colorado had imposed its service tax on a bank's customers (which was consistent with federal law) or on the bank itself (which was not). Though the bank collected and paid the tax, its incidence fell on the customers. Favoring substance over form, we said: "The person liable for the tax [the bank], primarily, cannot always be said to be the real taxpayer. *536 The taxpayer is the person ultimately liable for the tax itself." Ibid. As a result, we determined that the tax had been imposed on the customers rather than the bank. If Colorado Nat. Bank is relevant at all, it shows our preference for commonsense inquiries over formalism—a preference that works against the Government's technical argument in this case. IV As we have just developed, 28 U.S. C. § 1346(a)(1) clearly allows one from whom taxes are erroneously or illegally collected to sue for a refund of those taxes. And 26 U.S. C. § 6402(a), with similar clarity, authorizes the Secretary to pay out a refund to "the person who made the overpayment." The Government's strained reading of § 1346(a)(1), we note, would leave people in Williams' position without a remedy. See supra, at 529, n. 1. This consequence reinforces our conclusion that Congress did not intend refund actions under § 1346(a)(1) to be unavailable to persons situated as Lori Williams is. Though the Government points to three other remedies, none was realistically open to Williams. Nor would any of the vaunted remedies be available to others in her situation. See, e. g., Martin v. United States, 895 F.2d 992 (CA4 1990); Barris v. United States, 851 F. Supp. 696 (WD Pa. 1994); Brodey v. United States, 788 F. Supp. 44 (Mass. 1991) (all ordering refunds of amounts erroneously collected to the people who paid those amounts). If the Government has not levied on property—as it has not levied on Williams' home—the owner cannot challenge such a levy under 26 U.S. C. § 7426. Nor would an action under 28 U.S. C. § 2410(a)(1) to quiet title afford meaningful relief to someone in Williams' position. The first lien on her property, for nearly $15,000, was filed just six months before the closing; and liens in larger sum—over $26,000, out of $41,937—were filed only 11 days before the closing. (Williams did not receive actual notice of any of the liens until barely a week before the closing.) She simply did not have *537 time to bring a quiet title action. She urgently sought to sell the property, but a sale would have been difficult before a final judgment in such litigation, which could have been protracted. In contrast, a refund suit would allow her to sell the property and simultaneously pay off the lien, leaving her free to litigate with the Government without tying up her real property, whose worth far exceeded the value of the Government's liens. Nor may Williams and persons similarly situated rely on § 6325(b)(3) for such an arrangement. This provision permits the Government to discharge a lien on property if the owner sets aside a fund that becomes subject to a new lien; the parties then can litigate the propriety of the new lien after the property is sold. However, § 6325(b)(3) and its implementing regulation render this remedy doubtful indeed, for it is available only at the Government's discretion. See § 6325(b)(3) ("[T]he Secretary may issue a certificate of discharge [of a federal tax lien] of any part of the property subject to the lien if such part of the property is sold and, pursuant to an agreement with the Secretary, the proceeds of such sale are to be held, as a fund subject to the liens and claims of the United States, in the same manner and with the same priority as such liens and claims had with respect to the discharged property.") (emphasis added); 26 CFR § 301.6325-1(b)(3) (1994) ("A district director [of the Internal Revenue Service] may, in his discretion, issue a certificate of discharge of any part of the property subject to a [tax lien] if such part of the property is sold and, pursuant to a written agreement with the district director, the proceeds of the sale are held, as a fund subject to the liens and claims of the United States, in the same manner and with the same priority as the lien or claim had with respect to the discharged property.") (emphasis added). So far as the record shows, the Government did not afford Williams an opportunity to substitute a fund pursuant to *538 § 6325(b)(3).[9] This omission is not surprising, for on the Government's theory of who may sue under § 1346(a)(1), the Government had scant incentive to agree to such an arrangement with people caught in Williams' bind. Under § 6325(b)(3), the Government does not receive cash, but another lien (albeit one on a fund). In contrast, if the Government resists a § 6325(b)(3) agreement, it is likely to get cash immediately: property owners eager to remove a tax lien will have to pay, as did Williams. If they may not sue under § 1346(a)(1), their payment is nonrefundable. An agreement pursuant to § 6325(b)(3) thus dependent on the district director's grace cannot sensibly be described as available to Williams. We do not agree with the Government that, if § 1346(a)(1) authorizes some third-party suits, the levy, quiet title, and separate-fund remedies become superfluous. Section 1346(a)(1) is a postdeprivation remedy, available only if the taxpayer has paid the Government in full. Flora v. United States, 362 U.S. 145 (1960). The other remedies offer predeprivation relief. The levy provision in 26 U.S. C. § 7426(a)(1) is available "without regard to whether such property has been surrendered to or sold by the Secretary." Likewise, 28 U.S. C. § 2410 allows a property owner to have a lien discharged without ever paying the tax. Under 26 U.S. C. § 6325(b)(3), the lien on the property is removed in exchange for a new lien, rather than a cash payment. V Finally, the Government urges that allowing Williams to sue will violate the principle that parties may not challenge *539 the tax liabilities of others. According to the Government, undermining this principle will lead to widespread abuse: In particular, parties will volunteer to pay the tax liabilities of others, only to seek a refund once the Government has ceased collecting from the real taxpayer. Although parties generally may not challenge the tax liabilities of others, this rule is not unyielding. A taxpayer's fiduciary may litigate the taxpayer's liability, even though the fiduciary is not herself liable. See 26 CFR § 301.6903-1(a) (1994) (the fiduciary must "assume the powers, rights, duties, and privileges of the taxpayer with respect to the taxes imposed by the Code"); ibid. ("The amount of the tax or liability is ordinarily not collectible from the personal estate of the fiduciary but is collectible from the estate of the taxpayer . . . ."); 15 J. Mertens, Law of Federal Income Taxation § 58.08 (1994) (refund claims for decedents filed by executor, administrator, or other fiduciary of estate). Similarly, certain transferees may litigate the tax liabilities of the transferor; if the transfer qualifies as a fraudulent conveyance under state law, the Code treats the transferee as the taxpayer, see 26 U.S. C. § 6901(a)(1)(A); 5 J. Rabkin & M. Johnson, Federal Income, Gift and Estate Taxation § 73.10, pp. 73-82 to 73-87 (1992), so the transferee may contest the transferor's liability either in tax court, see 14 Mertens, supra, § 53.50, or in a refund suit under § 1346(a)(1). See id., § 53.55. Furthermore, the Court has allowed a refund action by parties who were not assessed, albeit under a different statute. See Stahmann v. Vidal, 305 U.S. 61 (1938) (cotton producers could bring a refund action for a federal cotton ginning tax if they had paid the tax, even though the tax was assessed against ginners rather than producers). The burden on the principle that a party may not challenge the tax liability of another is mitigated, moreover, because Williams' main challenge is to the existence of a lien against her property, rather than to the underlying assessment on *540 her husband. That is, her primary claim is not that her husband never owed the tax[10]—a matter that, had she not paid these taxes herself under the duress of a lien, would not normally be her concern. Rather, she asserts that the Government has attached a lien on the wrong property, because the house belongs to her rather than to him—a scenario which leaves her "subject to" the tax in a meaningful and immediate way. We do not find disarming the Government's forecast that allowing Williams to sue will lead to rampant abuse. The Government's posited scenario seems implausible; it is not clear what incentive a volunteer has to pay someone else's taxes as a way to help that person evade them. Nor does the Government report that such schemes are commonplace among the millions of taxpayers in the Fourth and Ninth Circuits, Circuits that permit persons in Williams' position to bring refund suits. Furthermore, our holding does not authorize the host of third-party challenges the Government fears. Williams paid under protest, solely to gain release of the Government's lien on her property—a lien she attacked as erroneously maintained. We do not decide the circumstances, if any, under which a party who volunteers to pay a tax assessed against someone else may seek a refund under § 1346(a). *541 * * * The judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed.

This case presents the question whether respondent Lori Williams, who paid a tax under protest to remove a lien on her property, has standing to bring a refund action under 28 U.S. C. 1346(a)(1), even though the tax she paid was assessed against a third party. We hold that respondent has standing to sue for a refund. Respondent's suit falls within the broad language of 1346(a)(1), which gives federal courts jurisdiction to hear "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected," and only a strained reading of other relevant provisions would bar her suit. She had no realistic alternative to payment of a tax she did not owe,[1] and we do not believe Congress intended to leave parties in respondent's position without a remedy. I Before this litigation commenced, respondent Lori Williams and her then-husband Jerrold Rabin jointly owned their home. As part owner of a restaurant, Rabin personally incurred certain tax liabilities, which he failed to satisfy. In June 1987 and March 1988, the Government assessed Rabin close to $15,000 for these liabilities, and thereby placed a lien in the assessed amount on all his property, including his interest in the house. See 26 U.S. C. 6321 ("If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person."). The Government has not alleged that Williams is personally liable for these or any subsequent assessments. *530 Meanwhile, Rabin and Williams divided their marital property in contemplation of divorce. Williams did not have notice of the lien when Rabin deeded his interest in the house to her on October 25, 1988, for the Government did not file its tax lien until November 10, 1988. As consideration for the house, Williams assumed three liabilities for Rabin (none of them tax liabilities) totaling almost $650,000. App. 7-8 (Statement of Uncontroverted Facts presented by attorneys for United States). In the ensuing months, the Government made further assessments on Rabin in excess of $26,000, but did not file notice of them until June 22, 1989. Williams entered a contract on May 9, 1989, to sell the 9, house, and agreed to a closing date of July 3. One week before the closing, the Government gave actual notice to Williams and the purchaser of over $41,000 in tax liens which, it claimed, were valid against the property or proceeds of the sale. The purchaser threatened to sue Williams if the sale did not go through on schedule. Believing she had no realistic alternative—none having been suggested by the Government—Williams, under protest, authorized disbursement of $41,937 from the sale proceeds directly to the Internal Revenue Service so that she could convey clear title. After the Government denied Williams' claim for an administrative refund, she filed suit in the United States District Court for the Central District of California, claiming she had taken the property free of the Government's lien under 26 U.S. C. 6323(a) (absent proper notice, tax lien not valid against purchaser). To enforce her rights, she invoked 28 U.S. C. 1346(a)(1), which waives the Government's sovereign immunity from suit by authorizing federal courts to adjudicate "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected." In a trial on stipulated facts, the Government maintained that it was irrelevant whether the Government had a right to Williams' money; her plea could not be entertained, the Government *531 insisted, because she lacked standing to seek a refund under 1346(a)(1).[2] According to the Government, that provision authorizes actions only by the assessed party, i. e., Rabin. The District Court accepted this jurisdictional argument, relying on precedent set in the Fifth and Seventh Circuits.[3] The United States Court of Appeals for the Ninth Circuit reversed, guided by Fourth Circuit precedent.[4] To resolve this conflict among the Courts of Appeals, we granted certiorari, and now affirm. II The question before us is whether the waiver of sovereign immunity in 1346(a)(1) authorizes a refund suit by a party who, though not assessed a tax, paid the tax under protest to remove a federal tax lien from her property. In resolving this question, we may not enlarge the waiver beyond the purview of the statutory language. Department of Our task is to discern the "unequivocally expressed" intent of Congress, construing ambiguities in favor of immunity. United To fathom the congressional instruction, we turn first to the language of 1346(a). This provision does not say that only the person assessed may sue. Instead, the statute uses broad language: *532 "The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: "(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internalrevenue laws." 28 U.S. C. 1346(a) (1988 ed. and Supp. V) (emphasis added). Williams' plea to recover a tax "erroneously collected" falls squarely within this language. The broad language of 1346(a)(1) mirrors the broad common-law remedy the statute displaced: actions of assumpsit for money had and received, once brought against the tax collector personally rather than against the United States. See Ferguson, Jurisdictional Problems in Federal Tax Controversies, Assumpsit afforded a remedy to those who, like Williams, had paid money they did not owe—typically as a result of fraud, duress, or mistake. See H. Ballantine, Shipman on CommonLaw Pleading 163-164 (3d ed. 1923). Assumpsit refund actions were unavailable to volunteers, a limit that would not have barred Williams because she paid under protest. See III Acknowledging the evident breadth of 1346(a)(1), the Government relies on the interaction of three other provisions to narrow the waiver of sovereign immunity. The Government argues: Under 26 U.S. C. 7422, a party may *5 not bring a refund action without first exhausting administrative remedies; under 26 U.S. C. 6511, only a "taxpayer" may exhaust; under 26 U.S. C. 7701(a)(14), Williams is not a taxpayer. It is undisputed that 7422 requires administrative exhaustion.[5] If Williams iseligible to exhaust, she did so by filing an administrative claim. But to show that Williams is not eligible to exhaust, the Government relies first on 26 U.S. C. 6511(a), which provides in part: "(a) Period of limitation on filing claim "Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid." (Emphasis added.) From the statute's use of the term "taxpayer," rather than "person who paid the tax," the Government concludes that only a "taxpayer" may file for administrative relief under 7422, and thereafter pursue a refund action under 28 U.S. C. 1346(a)(1).[6] Then, to show that Williams is not *534 a "taxpayer," the Government relies on 26 U.S. C. 7701 (a)(14), which defines "taxpayer" as "any person subject to any internal revenue tax." According to the Government, a party who pays a tax is not "subject to" it unless she is the one assessed. The Government's argument fails at both statutory junctures. First, the word "taxpayer" in 6511(a)—the provision governing administrative claims—cannot bear the weight the Government puts on it. This provision's plain terms provide only a deadline for filing for administrative relief,[7] not a limit on who may file. To read the term "taxpayer" as implicitly limiting administrative relief to the party assessed is inconsistent with other provisions of the refund scheme, which expressly contemplate refunds to parties other than the one assessed. Thus, in authorizing the Secretary to award a credit or refund "[i]n the case of any overpayment," 26 U.S. C. 6402(a) describes the recipient not as the "taxpayer," but as "the person who made the overpayment." Similarly, in providing for credits and refunds for sales taxes and taxes on tobacco and alcohol, 26 U.S. C. 6416(a) and 26 U.S. C. 6419(a) describe the recipient as "the person who paid the tax." *535 Further, even if, as the Government contends, only "taxpayers" could seek administrative relief under 6511, the Government's claim that Williams is not at this point a "taxpayer" is unpersuasive. Section 7701(a)(14), defining "taxpayer," informs us that "[w]hen used in [the Internal Revenue Code], where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, [t]he term `taxpayer' means any person subject to any internal revenue tax."[8] That definition does not exclude Williams. The Government reads the definition as if it said "any person who is assessed any internal revenue tax," but these are not Congress' words. The general phrase "subject to" is broader than the specific phrase "assessed" and, in the tax collection context before us, we think it is broad enough to include Williams. In placing a lien on her home and then accepting her tax payment under protest, the Government surely subjected Williams to a tax, even though she was not the assessed party. In support of its reading of "taxpayer," the Government cites our observation in Colorado Nat. Bank of that "[t]he taxpayer is the person ultimately liable for the tax itself." The Government takes this language out of context. We were not interpreting the term "taxpayer" in the Internal Revenue Code, but deciding whether a state tax scheme was consistent with federal law. In particular, we were determining whether Colorado had imposed its service tax on a bank's customers (which was consistent with federal law) or on the bank itself (which was not). Though the bank collected and paid the tax, its incidence fell on the customers. Favoring substance over form, we said: "The person liable for the tax [the bank], primarily, cannot always be said to be the real taxpayer. *536 The taxpayer is the person ultimately liable for the tax itself." As a result, we determined that the tax had been imposed on the customers rather than the bank. If Colorado Nat. Bank is relevant at all, it shows our preference for commonsense inquiries over formalism—a preference that works against the Government's technical argument in this case. IV As we have just developed, 28 U.S. C. 1346(a)(1) clearly allows one from whom taxes are erroneously or illegally collected to sue for a refund of those taxes. And 26 U.S. C. 6402(a), with similar clarity, authorizes the Secretary to pay out a refund to "the person who made the overpayment." The Government's strained reading of 1346(a)(1), we note, would leave people in Williams' position without a remedy. See at 9, n. 1. This consequence reinforces our conclusion that Congress did not intend refund actions under 1346(a)(1) to be unavailable to persons situated as Lori Williams is. Though the Government points to three other remedies, none was realistically open to Williams. Nor would any of the vaunted remedies be available to others in her situation. See, e. g., ; ; If the Government has not levied on property—as it has not levied on Williams' home—the owner cannot challenge such a levy under 26 U.S. C. 7426. Nor would an action under 28 U.S. C. 2410(a)(1) to quiet title afford meaningful relief to someone in Williams' position. The first lien on her property, for nearly $15,000, was filed just six months before the closing; and liens in larger sum—over $26,000, out of $41,937—were filed only 11 days before the closing. (Williams did not receive actual notice of any of the liens until barely a week before the closing.) She simply did not have *537 time to bring a quiet title action. She urgently sought to sell the property, but a sale would have been difficult before a final judgment in such litigation, which could have been protracted. In contrast, a refund suit would allow her to sell the property and simultaneously pay off the lien, leaving her free to litigate with the Government without tying up her real property, whose worth far exceeded the value of the Government's liens. Nor may Williams and persons similarly situated rely on 6325(b)(3) for such an arrangement. This provision permits the Government to discharge a lien on property if the owner sets aside a fund that becomes subject to a new lien; the parties then can litigate the propriety of the new lien after the property is sold. However, 6325(b)(3) and its implementing regulation render this remedy doubtful indeed, for it is available only at the Government's discretion. See 6325(b)(3) ("[T]he Secretary may issue a certificate of discharge [of a federal tax lien] of any part of the property subject to the lien if such part of the property is sold and, pursuant to an agreement with the Secretary, the proceeds of such sale are to be held, as a fund subject to the liens and claims of the United States, in the same manner and with the same priority as such liens and claims had with respect to the discharged property.") (emphasis added); 26 CFR 301.6325-1(b)(3) ("A district director [of the Internal Revenue Service] may, in his discretion, issue a certificate of discharge of any part of the property subject to a [tax lien] if such part of the property is sold and, pursuant to a written agreement with the district director, the proceeds of the sale are held, as a fund subject to the liens and claims of the United States, in the same manner and with the same priority as the lien or claim had with respect to the discharged property.") (emphasis added). So far as the record shows, the Government did not afford Williams an opportunity to substitute a fund pursuant to *538 6325(b)(3).[9] This omission is not surprising, for on the Government's theory of who may sue under 1346(a)(1), the Government had scant incentive to agree to such an arrangement with people caught in Williams' bind. Under 6325(b)(3), the Government does not receive cash, but another lien (albeit one on a fund). In contrast, if the Government resists a 6325(b)(3) agreement, it is likely to get cash immediately: property owners eager to remove a tax lien will have to pay, as did Williams. If they may not sue under 1346(a)(1), their payment is nonrefundable. An agreement pursuant to 6325(b)(3) thus dependent on the district director's grace cannot sensibly be described as available to Williams. We do not agree with the Government that, if 1346(a)(1) authorizes some third-party suits, the levy, quiet title, and separate-fund remedies become superfluous. Section 1346(a)(1) is a postdeprivation remedy, available only if the taxpayer has paid the Government in full. The other remedies offer predeprivation relief. The levy provision in 26 U.S. C. 7426(a)(1) is available "without regard to whether such property has been surrendered to or sold by the Secretary." Likewise, 28 U.S. C. 2410 allows a property owner to have a lien discharged without ever paying the tax. Under 26 U.S. C. 6325(b)(3), the lien on the property is removed in exchange for a new lien, rather than a cash payment. V Finally, the Government urges that allowing Williams to sue will violate the principle that parties may not challenge *539 the tax liabilities of others. According to the Government, undermining this principle will lead to widespread abuse: In particular, parties will volunteer to pay the tax liabilities of others, only to seek a refund once the Government has ceased collecting from the real taxpayer. Although parties generally may not challenge the tax liabilities of others, this rule is not unyielding. A taxpayer's fiduciary may litigate the taxpayer's liability, even though the fiduciary is not herself liable. See 26 CFR 301.6903-1(a) ; ; 15 J. Law of Federal Income Taxation 58.08 (refund claims for decedents filed by executor, administrator, or other fiduciary of estate). Similarly, certain transferees may litigate the tax liabilities of the transferor; if the transfer qualifies as a fraudulent conveyance under state law, the Code treats the transferee as the taxpayer, see 26 U.S. C. 6901(a)(1)(A); 5 J. Rabkin & M. Johnson, Federal Income, Gift and Estate Taxation 73.10, pp. 73-82 to 73-87 so the transferee may contest the transferor's liability either in tax court, see 14 53.50, or in a refund suit under 1346(a)(1). See 53.55. Furthermore, the Court has allowed a refund action by parties who were not assessed, albeit under a different statute. See The burden on the principle that a party may not challenge the tax liability of another is mitigated, moreover, because Williams' main challenge is to the existence of a lien against her property, rather than to the underlying assessment on *540 her husband. That is, her primary claim is not that her husband never owed the tax[10]—a matter that, had she not paid these taxes herself under the duress of a lien, would not normally be her concern. Rather, she asserts that the Government has attached a lien on the wrong property, because the house belongs to her rather than to him—a scenario which leaves her "subject to" the tax in a meaningful and immediate way. We do not find disarming the Government's forecast that allowing Williams to sue will lead to rampant abuse. The Government's posited scenario seems implausible; it is not clear what incentive a volunteer has to pay someone else's taxes as a way to help that person evade them. Nor does the Government report that such schemes are commonplace among the millions of taxpayers in the Fourth and Ninth Circuits, Circuits that permit persons in Williams' position to bring refund suits. Furthermore, our holding does not authorize the host of third-party challenges the Government fears. Williams paid under protest, solely to gain release of the Government's lien on her property—a lien she attacked as erroneously maintained. We do not decide the circumstances, if any, under which a party who volunteers to pay a tax assessed against someone else may seek a refund under 1346(a). *541 * * * The judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed.

Justice O'Connor

dissenting

Lebron v. National Railroad Passenger Corporation

https://www.courtlistener.com/opinion/117895/lebron-v-national-railroad-passenger-corporation/

https://www.courtlistener.com/api/rest/v3/clusters/117895/

1994-021

The Court holds that Amtrak is a Government entity and therefore all of its actions are subject to constitutional challenge. Lebron, however, expressly disavowed this argument below, and consideration of this broad and unexpected question is precluded because it was not presented in the petition for certiorari. The question on which we granted certiorari is narrower: Whether the alleged suppression of Lebron's speech by Amtrak, as a concededly private entity, should be imputed to the Government. Because Amtrak's decision to reject Lebron's billboard proposal was a matter of private business judgment and not of Government coercion, I would affirm the judgment below. I This Court's Rule 14.1(a) provides: "Only the questions set forth in the petition, or fairly included therein, will be considered by the Court." While "[t]he statement of any question *401 presented will be deemed to comprise every subsidiary question," ibid., questions that are merely "related" or "complementary" to the question presented are not "fairly included therein." Yee v. Escondido, 503 U.S. 519, 537-538 (1992) (emphasis deleted). In Yee, we held that a regulatory taking argument, while subsidiary to the umbrella question whether a taking had occurred, was only complementary to the physical taking inquiry set forth in the petition and thus was barred under Rule 14.1(a). See id., at 535. Here, state action is the umbrella claim. Subsidiary to that claim, but complementary to each other, are two distinct questions: whether Amtrak is a Government entity, and whether Amtrak's conduct as a private actor is nevertheless attributable to the Government. We granted certiorari on the following question, set forth in the petition: "Whether the court of appeals erred in holding that Amtrak's asserted policy barring the display of political advertising messages in Pennsylvania Station, New York, was not state action, where: "(a) the United States created Amtrak, endowed it with governmental powers, owns all its voting stock, and appoints all the members of its Board; "(b) the United States-appointed Board approved the advertising policy challenged here; "(c) the United States keeps Amtrak afloat every year by subsidizing its losses; and "(d) Pennsylvania Station was purchased for Amtrak by the United States and is shared with several other governmental entities." Pet. for Cert. i. The question asks whether the challenged policy "was not state action" and therefore may, at first blush, appear to present the umbrella inquiry. Yee suggests otherwise. The petition there recited two decisions by the Courts of Appeals and asked: "Was it error for the state appellate court to disregard *402 the rulings and hold that there was no taking under the fifth and fourteenth amendments?" Instead of focusing on whether "there was no taking," we read the question as a whole. Since the decisions by the Courts of Appeals and the lower court opinion involved only physical takings, we concluded: "Fairly construed, then, petitioners' question presented is the equivalent of the question, `Did the court below err in finding no physical taking?' " 503 U.S., at 537. Just so here. The question asks whether the lower court erred and thus directs our attention to the decisions below. The District Court, in its thorough order, explicitly noted Lebron's theory of the case: "Plaintiff does not contend that Amtrak is a governmental agency. What plaintiff contends is that the federal government is sufficiently entwined in Amtrak's operations and authority that the particular actions at issue must be deemed governmental action." 811 F. Supp. 993, 999 (SDNY 1993). Before the Court of Appeals, in order to distinguish a long line of cases which held that Amtrak is not a Government agency, Lebron stated: "Since Lebron does not contend that Amtrak is a governmental entity per se, but rather is so interrelated to state entities that it should be treated as a state actor here, these cases are inapposite." Brief for Michael A. Lebron in No. 93-7127 (CA2), p. 30, n. 39. The Court of Appeals, like the District Court, substantively discussed only the second question that Lebron argues here—whether Amtrak's conduct in this case implicates "the presence of government action in the activities of private entities." 12 F.3d 388, 390 (CA2 1993). To introduce its analysis, the Court of Appeals did state that "[t]he Rail Passenger Service Act of 1970 . . . created Amtrak as a private, for-profit corporation under the District of Columbia Business Corporation Act," ibid., relying on Congress' characterization of the corporation in 45 U.S. C. § 541. In so asserting, the Court of Appeals did not "`pas[s] upon' " the question such that it is now a proper basis for reversal, ante, at 379, *403 but rather merely identified the question that the court had to address and focused the inquiry on the precise argument presented by Lebron. This observation by the Court of Appeals is much like—indeed, much less extensive than—our discussion of Amtrak's status as a private corporation in National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U.S. 451, 453-456 (1985). I agree with the Court that Atchison does not bind us, ante, at 393-394, but, by the same token, I do not see how the court below could be said to have addressed the issue. A passing observation could not constitute binding precedent; so, too, it could not serve as the basis for reversal. The question set forth in the petition focused on the specific action by Amtrak, not on the general nature of the corporation as a private or public entity. Lebron asked whether "Amtrak's asserted policy barring the display of political advertising messages in Pennsylvania Station, New York, was not state action." App. to Pet. for Cert. i. The list that follows this question, while partially concerning Amtrak's nature as an entity, went to support the thrust of the query, which is whether these enumerated attributes render Amtrak's advertising policy state action. Lebron's emphasis on the specific action challenged is the crucial difference between his alternative arguments for state action. The first inquiry—whether Amtrak is a Government entity—focuses on whether Amtrak is so controlled by the Government that it should be treated as a Government agency, and all of its decisions considered state action. The second inquiry takes Lebron at his word that Amtrak is not a Government entity and instead focuses on the State's influence on particular actions by Amtrak as a private actor. Fairly construed, the question presented is whether the Court of Appeals erred in holding that the advertising policy of Amtrak, as a private entity, is not attributable to the Federal Government despite the corporation's links thereto. This question is closely related and complementary to, but *404 certainly not inclusive of, the question answered by the Court today, which is whether those links render Amtrak the functional equivalent of a Government agency. In my view, the latter question is barred by Rule 14.1(a). Relying on United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439 (1993), the Court argues that it properly addresses whether Amtrak is a Government entity because that inquiry is "prior to the clearly presented question," namely, whether Amtrak's decision is attributable to the Government. Ante, at 382. Independent Ins. Agents, however, held only that the Court of Appeals had authority to consider a waived claim sua sponte and did not abuse its discretion in doing so.[*] That is quite different from the purpose for which the Court now marshals the case, which is to justify its consideration of a waived question in the first instance. As explained below, I do not question the Court's authority, only its prudence. In any event, the dispute in Independent Ins. Agents centered on the interpretation of a statute that may not have existed, and, as the Court recognizes, ante, at 383, n. 3, the decision simply applied the traditional principle that "[t]here can be no estoppel in the way of ascertaining the existence of a law." South Ottawa v. Perkins, 94 U.S. 260, 267 (1877). Here, one need not assume the existence of any predicate legal rule to accept Lebron's word that Amtrak is a private entity. The mere fact that one question must be answered before another does not insulate the former from Rule 14.1(a) and other waiver rules. In Stone v. Powell, 428 U.S. 465 (1976), *405 we held that Fourth Amendment claims are not ordinarily cognizable in federal habeas proceedings and distinguished several cases by noting that "the issue of the substantive scope of the writ was not presented in the petition[s] for certiorari." Id., at 481, n. 15. We thus recognized that those decisions properly avoided the question of cognizability, which question, of course, is logically anterior to the merits of the Fourth Amendment claims presented. In Steagald v. United States, 451 U.S. 204, 211 (1981), we held that the Government had conceded that the petitioner had a Fourth Amendment interest in the searched home, an inquiry that precedes the question that was preserved, whether the search was reasonable. In Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 97, n. 4 (1991), because the question was neither litigated below nor included in the petition, we assumed the existence of a cause of action under § 20(a) of the Investment Company Act of 1940 before addressing the requirements of such an action. See also Burks v. Lasker, 441 U.S. 471, 476 (1979) (assuming same). Finally, in McCormick v. United States, 500 U.S. 257 (1991), the Court held that a state legislator did not violate the antiextortion Hobbs Act, 18 U.S. C. § 1951, by accepting campaign contributions without an explicit exchange of improper promises. The Court reached this question only after declining to consider whether the Act applies to local officials at all, because that question was neither argued below nor included in the petition for certiorari. McCormick, 500 U. S., at 268, n. 6; see also id., at 280 (Scalia, J., concurring) (accepting the assumption, because the argument was waived, that the Hobbs Act is a "federal `payment for official action' statute" even though "I think it well to bear in mind that the statute may not exist"). The Court does not take issue with these cases but argues further that, because the question whether Amtrak is a Government entity is "dependent upon many of the same factual inquiries [as the clearly presented question], refusing to regard *406 it as embraced within the petition may force us to assume what the facts will show to be ridiculous, a risk which ought to be avoided." Ante, at 382. A certain circularity inheres in this logic, because the Court must first answer the omitted question in order to determine whether its answer turns on "the same factual inquiries" as the clearly presented question. As for the facts, the record is shaped by the parties' arguments below. Perhaps serendipity has given the Court a factual record adequate to decide a question other than that advanced below, but there is no guarantee of such convergence. It is rather unfair to hold a party to a record that it may have developed differently in response to a different theory of the case. It is this risk of unfairness, rather than the fear of seeming "ridiculous," that we should avoid. Rule 14.1(a), of course, imposes only a prudential limitation, but one that we disregard "only in the most exceptional cases." Stone v. Powell, supra, at 481, n. 15; see also United States v. Mendenhall, 446 U.S. 544, 551, n. 5 (1980). This is not one of them. As noted before, not only did Lebron disavow the argument that Amtrak is a Government entity below, he did so in order to distinguish troublesome cases. Lebron's postpetition attempt to resuscitate the claim that he himself put to rest is precisely the kind of bait-and-switch strategy that waiver rules, prudential or otherwise, are supposed to protect against. In Steagald, supra, at 211, for example, we stated unequivocally that "the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner's assertion that he possessed a legitimate expectation of privacy in the searched home." I see no difference here. The Rule's prudential limitation on our power of review serves two important purposes, both of which the Court disserves by deciding that Amtrak is a Government entity. First, the Rule provides notice and enables the respondent to sharpen its arguments in opposition to certiorari. "By *407 forcing the petitioner to choose his questions at the outset, Rule 14.1(a) relieves the respondent of the expense of unnecessary litigation on the merits and the burden of opposing certiorari on unpresented questions." Yee, 503 U. S., at 536. Lebron argues that Amtrak has waived its Rule 14.1(a) argument by failing to object in the brief in opposition to certiorari. But that is exactly the point: The question set forth did not fairly include an argument that Amtrak is a Government agency, and, indeed, the petition was devoted to whether Amtrak's private decision should be imputed to the State. Even at pages 16-18, the petition did not "fairly embrac[e] the argument that Lebron now advances," ante, at 380, but rather argued that the composition of Amtrak's board "renders an otherwise private entity a state actor," Pet. for Cert. 16 (emphasis added)—thus specifically repeating the concession he now wishes to withdraw. Amtrak could not respond to a point not argued and did not waive an argument that was not at issue. Not until the merits brief did Amtrak have notice that Lebron would contradict his persistent assertion that the corporation was a private entity. Second, the Rule assists the management of our cases. "Rule 14.1(a) forces the parties to focus on the questions the Court has viewed as particularly important, thus enabling us to make efficient use of our resources." Yee, supra, at 536. We normally grant only petitions that present an important question of law on which the lower courts are in conflict. Here, the lower courts have generally held that Amtrak is not a Government entity, see, e. g., Anderson v. National Railroad Passenger Corporation, 754 F.2d 202, 204 (CA7 1985); Ehm v. National Railroad Passenger Corporation, 732 F.2d 1250, 1255 (CA5), cert. denied, 469 U.S. 982 (1984), and none of our cases suggest otherwise. Even where the lower courts are in clear conflict, we often defer consideration of novel questions of law to permit further development. Despite the prevalence of publicly owned corporations, whether they are Government agencies is a question *408 seldom answered, and then only for limited purposes. See Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536, 539 (1946); National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S., at 471. Answering this question today merely opens the back door to premature adjudication of similarly broad and novel theories in the future. Weeding out such endeavors, Rule 14.1(a), like other waiver rules, rests firmly upon a limited view of our judicial power. See, e. g., Carducci v. Regan, 714 F.2d 171, 177 (CADC 1983) (Scalia, J.) ("The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them"). "The doctrine of judicial restraint teaches us that patience in the judicial resolution of conflicts may sometimes produce the most desirable result." Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 183 (1982). Whether the result of today's decision is desirable I do not decide. But I think it clear that the Court has exhibited little patience in reaching that result. II Accepting Lebron's concession that Amtrak is a private entity, I must "traverse th[e] difficult terrain," ante, at 378, that the Court sees fit to avoid, and answer the question that is properly presented to us: whether Amtrak's decision to ban Lebron's speech, although made by a concededly private entity, is nevertheless attributable to the Government and therefore considered state action for constitutional purposes. Reflecting the discontinuity that marks the law in this area, we have variously characterized the inquiry as whether "there is a sufficiently close nexus between the State and the challenged action," Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974); whether the State, by encouraging the challenged conduct, could be thought "responsible for those *409 actions," Blum v. Yaretsky, 457 U.S. 991, 1005 (1982); and whether "the alleged infringement of federal rights [is] `fairly attributable to the State,' " Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Whatever the semantic formulation, I remain of the view that the conduct of a private actor is not subject to constitutional challenge if such conduct is "fundamentally a matter of private choice and not state action." Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991) (O'Connor, J., dissenting). Lebron relies heavily on Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). There, the Court perceived a symbiotic relationship between a racially segregated restaurant and a state agency from which the restaurant leased public space. Noting that the State stood to profit from the discrimination, the Court held that the government had "so far insinuated itself into a position of interdependence with" the private restaurant that it was in effect "a joint participant in the challenged activity." Id., at 725. Focusing on this language, Lebron argues that various features of Amtrak's structure and management—its statutory genesis, the heavy reliance on federal subsidies, and a board appointed by the President—places it in a symbiotic relationship with the Government such that the decision to ban Lebron's speech should be imputed to the State. Our decision in Burton, however, was quite narrow. We recognized "the limits of our inquiry" and emphasized that our decision depended on the "peculiar facts [and] circumstances present." Id., at 726. We have since noted that Burton limited its "actual holding to lessees of public property," Jackson v. Metropolitan Edison Co., supra, at 358, and our recent decisions in this area have led commentators to doubt its continuing vitality, see, e. g., L. Tribe, American Constitutional Law § 18-3, p. 1701, n. 13 (2d ed. 1988) ("The only surviving explanation of the result in Burton may be that found in Justice Stewart's concurrence"). *410 In Jackson, we held that a private utility's termination of service to a customer is not subject to due process challenge, even though the termination was made pursuant to a state law. In doing so, we made clear that the question turns on whether the challenged conduct results from private choice: "Respondent's exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so `state action' for purposes of the Fourteenth Amendment." 419 U.S., at 357 (footnote omitted). The rule applies even where the private entity makes its decision in an environment heavily regulated by the government. Rendell-Baker, supra, involved a private school for troubled students who were transferred there by authority of a state law, and for whose education the State paid the school. Public funds comprised 90% to 99% of the school budget. The school fired petitioners, and a state grievance board reviewed that personnel action. Despite the school's pervasive ties to the State, we held that the discharge decisions were not subject to constitutional challenge because those actions "were not compelled or even influenced by any state regulation." Id., at 841. We noted that "in contrast to the extensive regulation of the school generally, the various regulators showed relatively little interest in the school's personnel matters." Ibid. Likewise, in Blum v. Yaretsky, supra, we held that the decisions of a regulated hospital to discharge its patients were not subject to constitutional challenge. Although various Medicaid regulations and benefit adjustment procedures may have encouraged the hospital's decisions to discharge its patients early, we held that the State was not "responsible for those actions" because such actions "ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State." Id., at 1005, 1008. See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 547 (1987) ("There is no evidence that the Federal Government coerced *411 or encouraged the USOC in the exercise of its right [to deny use of its copyright]"). These cases differ markedly from the "interdependence" or "joint participation" analysis of Burton and stand for the principle that, unless the government affirmatively influenced or coerced the private party to undertake the challenged action, such conduct is not state action for constitutional purposes. Edmonson v. Leesville Concrete Co., supra, is not to the contrary. In that case, the Court held that a private attorney's exercise of a peremptory challenge is attributable to the government and therefore subject to constitutional inquiry. Although the opinion cited Burton, see 500 U.S., at 621, 624, it emphasized that a private party exercising a peremptory challenge enjoys the "overt, significant assistance of the court," id., at 624. The decision therefore is an application of Shelley v. Kraemer, 334 U.S. 1, 19 (1948), which focused on the use of the State's coercive power, through its courts, to effect the litigant's allegedly unconstitutional choice. Moreover, Edmonson stressed that a litigant exercising a peremptory challenge performs a "traditional function of the government," 500 U.S., at 624, a theory of state action established by Marsh v. Alabama, 326 U.S. 501 (1946), that is independent from Burton and not relevant to this case. Relying thus on Shelley and Marsh, Edmonson did not necessarily extend the "interdependence" rationale of Burton beyond the limited facts of that case. Given the pervasive role of government in our society, a test of state action predicated upon public and private "interdependence" sweeps much too broadly and would subject to constitutional challenge the most pedestrian of everyday activities, a problem that the Court recognized in Burton itself, see 365 U.S., at 725-726. A more refined inquiry is that established by Jackson, Rendell-Baker, Blum, and San Francisco Arts & Athletics: The conduct of a private entity is not subject to constitutional scrutiny if the challenged action results from *412 the exercise of private choice and not from state influence or coercion. Applying this principle to the facts before us, I see no basis to impute to the Government Amtrak's decision to disapprove Lebron's advertisement. Although a number of factors indicate the Government's pervasive influence in Amtrak's management and operation, none suggest that the Government had any effect on Amtrak's decision to turn down Lebron's proposal. The advertising policy that allegedly violates the First Amendment originated with a predecessor to Amtrak, the wholly private Pennsylvania Railroad Company. A 1967 lease by that company, for example, prohibited "any advertisement which in the judgement of Licensor is or might be deemed to be slanderous, libelous, unlawful, immoral, [or] offensive to good taste . . . ."App. 326, ¶ 19. Amtrak simply continued this policy after it took over. The specific decision to disapprove Lebron's advertising was made by Amtrak's Vice President of Real Estate and Operations Development, who, as a corporate officer, was neither appointed by the President nor directed by the Presidentappointed board to disapprove Lebron's proposal. Lebron nevertheless contends that the board, through its approval of the advertising policy, controlled the adverse action against him. This contention rests on the faulty premise that Amtrak's directors are state actors simply because they were appointed by the President; it assumes that the board members sit as public officials and not as business directors, thus begging the question whether Amtrak is a Government agency or a private entity. In any event, even accepting Lebron's premise that the board's approval has constitutional significance, the factual record belies his contention. The particular lease that permitted Amtrak to disallow Lebron's billboard was neither reviewed nor approved directly by the board. In fact, minutes of meetings dating back to 1985 showed that the board approved only one contract between Amtrak and Transportation Displays, Incorporated, *413 the billboard leasing company that served as Amtrak's agent, and even then it is not clear whether the board approved the contract or merely delegated authority to execute the licensing agreement. App. 402. In short, nothing in this case suggests that the Government controlled, coerced, or even influenced Amtrak's decision, made pursuant to corporate policy and private business judgment, to disapprove the advertisement proposed by Lebron. Presented with this question, the Court of Appeals properly applied our precedents and did not impute Amtrak's decision to the Government. I would affirm on this basis and not reverse the Court of Appeals based on a theory that is foreign to this case. Respectfully, I dissent.

The Court holds that Amtrak is a Government entity and therefore all of its actions are subject to constitutional challenge. Lebron, however, expressly disavowed this argument below, and consideration of this broad and unexpected question is precluded because it was not presented in the petition for certiorari. The question on which we granted certiorari is narrower: Whether the alleged suppression of Lebron's speech by Amtrak, as a concededly private entity, should be imputed to the Government. Because Amtrak's decision to reject Lebron's billboard proposal was a matter of private business judgment and not of Government coercion, I would affirm the judgment below. I This Court's Rule 14.1(a) provides: "Only the questions set forth in the petition, or fairly included therein, will be considered by the Court." While "[t]he statement of any question *401 presented will be deemed to comprise every subsidiary question," ib questions that are merely "related" or "complementary" to the question presented are not "fairly included therein." In we held that a regulatory taking argument, while subsidiary to the umbrella question whether a taking had occurred, was only complementary to the physical taking inquiry set forth in the petition and thus was barred under Rule 14.1(a). See Here, state action is the umbrella claim. Subsidiary to that claim, but complementary to each other, are two distinct questions: whether Amtrak is a Government entity, and whether Amtrak's conduct as a private actor is nevertheless attributable to the Government. We granted certiorari on the following question, set forth in the petition: "Whether the court of appeals erred in holding that Amtrak's asserted policy barring the display of political advertising messages in Pennsylvania Station, New York, was not state action, where: "(a) the United States created Amtrak, endowed it with governmental powers, owns all its voting stock, and appoints all the members of its Board; "(b) the United States-appointed Board approved the advertising policy challenged here; "(c) the United States keeps Amtrak afloat every year by subsidizing its losses; and "(d) Pennsylvania Station was purchased for Amtrak by the United States and is shared with several other governmental entities." Pet. for Cert. i. The question asks whether the challenged policy "was not state action" and therefore may, at first blush, appear to present the umbrella inquiry. suggests otherwise. The petition there recited two decisions by the Courts of Appeals and asked: "Was it error for the state appellate court to disregard *402 the rulings and hold that there was no taking under the fifth and fourteenth amendments?" Instead of focusing on whether "there was no taking," we read the question as a whole. Since the decisions by the Courts of Appeals and the lower court opinion involved only physical takings, we concluded: "Fairly construed, then, petitioners' question presented is the equivalent of the question, `Did the court below err in finding no physical taking?' " Just so here. The question asks whether the lower court erred and thus directs our attention to the decisions below. The District Court, in its thorough order, explicitly noted Lebron's theory of the case: "Plaintiff does not contend that Amtrak is a governmental agency. What plaintiff contends is that the federal government is sufficiently entwined in Amtrak's operations and authority that the particular actions at issue must be deemed governmental action." Before the Court of Appeals, in order to distinguish a long line of cases which held that Amtrak is not a Government agency, Lebron stated: "Since Lebron does not contend that Amtrak is a governmental entity per se, but rather is so interrelated to state entities that it should be treated as a state actor here, these cases are inapposite." Brief for Michael A. Lebron in No. 93-7127 (CA2), p. 30, n. 39. The Court of Appeals, like the District Court, substantively discussed only the second question that Lebron argues here—whether Amtrak's conduct in this case implicates "the presence of government action in the activities of private entities." To introduce its analysis, the Court of Appeals did state that "[t]he Rail Passenger Service Act of 70 created Amtrak as a private, for-profit corporation under the District of Columbia Business Corporation Act," ib relying on Congress' characterization of the corporation in 45 U.S. C. 541. In so asserting, the Court of Appeals did not "`pas[s] upon' " the question such that it is now a proper basis for reversal, ante, at 379, *403 but rather merely identified the question that the court had to address and focused the inquiry on the precise argument presented by Lebron. This observation by the Court of Appeals is much like—indeed, much less extensive than—our discussion of Amtrak's status as a private corporation in National Railroad Passenger I agree with the Court that Atchison does not bind us, ante, at 393-394, but, by the same token, I do not see how the court below could be said to have addressed the issue. A passing observation could not constitute binding precedent; so, too, it could not serve as the basis for reversal. The question set forth in the petition focused on the specific action by Amtrak, not on the general nature of the corporation as a private or public entity. Lebron asked whether "Amtrak's asserted policy barring the display of political advertising messages in Pennsylvania Station, New York, was not state action." App. to Pet. for Cert. i. The list that follows this question, while partially concerning Amtrak's nature as an entity, went to support the thrust of the query, which is whether these enumerated attributes render Amtrak's advertising policy state action. Lebron's emphasis on the specific action challenged is the crucial difference between his alternative arguments for state action. The first inquiry—whether Amtrak is a Government entity—focuses on whether Amtrak is so controlled by the Government that it should be treated as a Government agency, and all of its decisions considered state action. The second inquiry takes Lebron at his word that Amtrak is not a Government entity and instead focuses on the State's influence on particular actions by Amtrak as a private actor. Fairly construed, the question presented is whether the Court of Appeals erred in holding that the advertising policy of Amtrak, as a private entity, is not attributable to the Federal Government despite the corporation's links thereto. This question is closely related and complementary to, but *404 certainly not inclusive of, the question answered by the Court today, which is whether those links render Amtrak the functional equivalent of a Government agency. In my view, the latter question is barred by Rule 14.1(a). Relying on United States Nat. Bank of the Court argues that it properly addresses whether Amtrak is a Government entity because that inquiry is "prior to the clearly presented question," namely, whether Amtrak's decision is attributable to the Government. Ante, at 382. Independent Ins. Agents, however, held only that the Court of Appeals had authority to consider a waived claim sua sponte and did not abuse its discretion in doing so.[*] That is quite different from the purpose for which the Court now marshals the case, which is to justify its consideration of a waived question in the first instance. As explained below, I do not question the Court's authority, only its prudence. In any event, the dispute in Independent Ins. Agents centered on the interpretation of a statute that may not have existed, and, as the Court recognizes, ante, at 383, n. 3, the decision simply applied the traditional principle that "[t]here can be no estoppel in the way of ascertaining the existence of a law." South Here, one need not assume the existence of any predicate legal rule to accept Lebron's word that Amtrak is a private entity. The mere fact that one question must be answered before another does not insulate the former from Rule 14.1(a) and other waiver rules. In *405 we held that Fourth Amendment claims are not ordinarily cognizable in federal habeas proceedings and distinguished several cases by noting that "the issue of the substantive scope of the writ was not presented in the petition[s] for certiorari." We thus recognized that those decisions properly avoided the question of cognizability, which question, of course, is logically anterior to the merits of the Fourth Amendment claims presented. In we held that the Government had conceded that the petitioner had a Fourth Amendment interest in the searched home, an inquiry that precedes the question that was preserved, whether the search was reasonable. In because the question was neither litigated below nor included in the petition, we assumed the existence of a cause of action under 20(a) of the Investment Company Act of 40 before addressing the requirements of such an action. See also Finally, in the Court held that a state legislator did not violate the antiextortion Hobbs Act, 18 U.S. C. 51, by accepting campaign contributions without an explicit exchange of improper promises. The Court reached this question only after declining to consider whether the Act applies to local officials at all, because that question was neither argued below nor included in the petition for certiorari. McCormick, n. 6; see also (accepting the assumption, because the argument was waived, that the Hobbs Act is a "federal `payment for official action' statute" even though "I think it well to bear in mind that the statute may not exist"). The Court does not take issue with these cases but argues further that, because the question whether Amtrak is a Government entity is "dependent upon many of the same factual inquiries [as the clearly presented question], refusing to regard *406 it as embraced within the petition may force us to assume what the facts will show to be ridiculous, a risk which ought to be avoided." Ante, at 382. A certain circularity inheres in this logic, because the Court must first answer the omitted question in order to determine whether its answer turns on "the same factual inquiries" as the clearly presented question. As for the facts, the record is shaped by the parties' arguments below. Perhaps serendipity has given the Court a factual record adequate to decide a question other than that advanced below, but there is no guarantee of such convergence. It is rather unfair to hold a party to a record that it may have developed differently in response to a different theory of the case. It is this risk of unfairness, rather than the fear of seeming "ridiculous," that we should avoid. Rule 14.1(a), of course, imposes only a prudential limitation, but one that we disregard "only in the most exceptional cases." ; see also United This is not one of them. As noted before, not only did Lebron disavow the argument that Amtrak is a Government entity below, he did so in order to distinguish troublesome cases. Lebron's postpetition attempt to resuscitate the claim that he himself put to rest is precisely the kind of bait-and-switch strategy that waiver rules, prudential or otherwise, are supposed to protect against. In Steagald, at for example, we stated unequivocally that "the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner's assertion that he possessed a legitimate expectation of privacy in the searched home." I see no difference here. The Rule's prudential limitation on our power of review serves two important purposes, both of which the Court disserves by deciding that Amtrak is a Government entity. First, the Rule provides notice and enables the respondent to sharpen its arguments in opposition to certiorari. "By *407 forcing the petitioner to choose his questions at the outset, Rule 14.1(a) relieves the respondent of the expense of unnecessary litigation on the merits and the burden of opposing certiorari on unpresented questions." Lebron argues that Amtrak has waived its Rule 14.1(a) argument by failing to object in the brief in opposition to certiorari. But that is exactly the point: The question set forth did not fairly include an argument that Amtrak is a Government agency, and, indeed, the petition was devoted to whether Amtrak's private decision should be imputed to the State. Even at pages 16-18, the petition did not "fairly embrac[e] the argument that Lebron now advances," ante, at 380, but rather argued that the composition of Amtrak's board "renders an otherwise private entity a state actor," Pet. for Cert. 16 (emphasis added)—thus specifically repeating the concession he now wishes to withdraw. Amtrak could not respond to a point not argued and did not waive an argument that was not at issue. Not until the merits brief did Amtrak have notice that Lebron would contradict his persistent assertion that the corporation was a private entity. Second, the Rule assists the management of our cases. "Rule 14.1(a) forces the parties to focus on the questions the Court has viewed as particularly important, thus enabling us to make efficient use of our resources." We normally grant only petitions that present an important question of law on which the lower courts are in conflict. Here, the lower courts have generally held that Amtrak is not a Government entity, see, e. g., ; (CA5), cert. denied, and none of our cases suggest otherwise. Even where the lower courts are in clear conflict, we often defer consideration of novel questions of law to permit further development. Despite the prevalence of publicly owned corporations, whether they are Government agencies is a question *408 seldom answered, and then only for limited purposes. See Cherry Cotton Mills, ; National Railroad Passenger Answering this question today merely opens the back door to premature adjudication of similarly broad and novel theories in the future. Weeding out such endeavors, Rule 14.1(a), like other waiver rules, rests firmly upon a limited view of our judicial power. See, e. g., ("The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them"). "The doctrine of judicial restraint teaches us that patience in the judicial resolution of conflicts may sometimes produce the most desirable result." Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 183 Whether the result of today's decision is desirable I do not decide. But I think it clear that the Court has exhibited little patience in reaching that result. II Accepting Lebron's concession that Amtrak is a private entity, I must "traverse th[e] difficult terrain," ante, at 378, that the Court sees fit to avoid, and answer the question that is properly presented to us: whether Amtrak's decision to ban Lebron's speech, although made by a concededly private entity, is nevertheless attributable to the Government and therefore considered state action for constitutional purposes. Reflecting the discontinuity that marks the law in this area, we have variously characterized the inquiry as whether "there is a sufficiently close nexus between the State and the challenged action," Jackson v. Metropolitan Edison ; whether the State, by encouraging the challenged conduct, could be thought "responsible for those *409 actions," ; and whether "the alleged infringement of federal rights [is] `fairly attributable to the State,' " quoting Lugar v. Edmondson Oil Whatever the semantic formulation, I remain of the view that the conduct of a private actor is not subject to constitutional challenge if such conduct is "fundamentally a matter of private choice and not state action." Edmonson v. Leesville Concrete Lebron relies heavily on There, the Court perceived a symbiotic relationship between a racially segregated restaurant and a state agency from which the restaurant leased public space. Noting that the State stood to profit from the discrimination, the Court held that the government had "so far insinuated itself into a position of interdependence with" the private restaurant that it was in effect "a joint participant in the challenged activity." Focusing on this language, Lebron argues that various features of Amtrak's structure and management—its statutory genesis, the heavy reliance on federal subsidies, and a board appointed by the President—places it in a symbiotic relationship with the Government such that the decision to ban Lebron's speech should be imputed to the State. Our decision in Burton, however, was quite narrow. We recognized "the limits of our inquiry" and emphasized that our decision depended on the "peculiar facts [and] circumstances present." We have since noted that Burton limited its "actual holding to lessees of public property," Jackson v. Metropolitan Edison and our recent decisions in this area have led commentators to doubt its continuing vitality, see, e. g., L. Tribe, American Constitutional Law 18-3, p. 1701, n. 13 (2d ed. 88) ("The only surviving explanation of the result in Burton may be that found in Justice Stewart's concurrence"). *410 In Jackson, we held that a private utility's termination of service to a customer is not subject to due process challenge, even though the termination was made pursuant to a state law. In doing so, we made clear that the question turns on whether the challenged conduct results from private choice: "Respondent's exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so `state action' for purposes of the Fourteenth Amendment." The rule applies even where the private entity makes its decision in an environment heavily regulated by the government. involved a private school for troubled students who were transferred there by authority of a state law, and for whose education the State paid the school. Public funds comprised 90% to 99% of the school budget. The school fired petitioners, and a state grievance board reviewed that personnel action. Despite the school's pervasive ties to the State, we held that the discharge decisions were not subject to constitutional challenge because those actions "were not compelled or even influenced by any state regulation." We noted that "in contrast to the extensive regulation of the school generally, the various regulators showed relatively little interest in the school's personnel matters." Likewise, in we held that the decisions of a regulated hospital to discharge its patients were not subject to constitutional challenge. Although various Medicaid regulations and benefit adjustment procedures may have encouraged the hospital's decisions to discharge its patients early, we held that the State was not "responsible for those actions" because such actions "ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State." at 1008. See also San Francisco Arts & Athletics, Olympic Comm., These cases differ markedly from the "interdependence" or "joint participation" analysis of Burton and stand for the principle that, unless the government affirmatively influenced or coerced the private party to undertake the challenged action, such conduct is not state action for constitutional purposes. Edmonson v. Leesville Concrete is not to the contrary. In that case, the Court held that a private attorney's exercise of a peremptory challenge is attributable to the government and therefore subject to constitutional inquiry. Although the opinion cited Burton, see 624, it emphasized that a private party exercising a peremptory challenge enjoys the "overt, significant assistance of the court," The decision therefore is an application of which focused on the use of the State's coercive power, through its courts, to effect the litigant's allegedly unconstitutional choice. Moreover, Edmonson stressed that a litigant exercising a peremptory challenge performs a "traditional function of the government," 500 U.S., a theory of state action established by that is independent from Burton and not relevant to this case. Relying thus on Shelley and Marsh, Edmonson did not necessarily extend the "interdependence" rationale of Burton beyond the limited facts of that case. Given the pervasive role of government in our society, a test of state action predicated upon public and private "interdependence" sweeps much too broadly and would subject to constitutional challenge the most pedestrian of everyday activities, a problem that the Court recognized in Burton itself, see 365 U.S., -726. A more refined inquiry is that established by Jackson, Blum, and San Francisco Arts & Athletics: The conduct of a private entity is not subject to constitutional scrutiny if the challenged action results from *412 the exercise of private choice and not from state influence or coercion. Applying this principle to the facts before us, I see no basis to impute to the Government Amtrak's decision to disapprove Lebron's advertisement. Although a number of factors indicate the Government's pervasive influence in Amtrak's management and operation, none suggest that the Government had any effect on Amtrak's decision to turn down Lebron's proposal. The advertising policy that allegedly violates the First Amendment originated with a predecessor to Amtrak, the wholly private Pennsylvania Railroad Company. A 67 lease by that company, for example, prohibited "any advertisement which in the judgement of Licensor is or might be deemed to be slanderous, libelous, unlawful, immoral, [or] offensive to good taste"App. 326, ¶ Amtrak simply continued this policy after it took over. The specific decision to disapprove Lebron's advertising was made by Amtrak's Vice President of Real Estate and Operations Development, who, as a corporate officer, was neither appointed by the President nor directed by the Presidentappointed board to disapprove Lebron's proposal. Lebron nevertheless contends that the board, through its approval of the advertising policy, controlled the adverse action against him. This contention rests on the faulty premise that Amtrak's directors are state actors simply because they were appointed by the President; it assumes that the board members sit as public officials and not as business directors, thus begging the question whether Amtrak is a Government agency or a private entity. In any event, even accepting Lebron's premise that the board's approval has constitutional significance, the factual record belies his contention. The particular lease that permitted Amtrak to disallow Lebron's billboard was neither reviewed nor approved directly by the board. In fact, minutes of meetings dating back to showed that the board approved only one contract between Amtrak and Transportation Displays, Incorporated, *413 the billboard leasing company that served as Amtrak's agent, and even then it is not clear whether the board approved the contract or merely delegated authority to execute the licensing agreement. App. 402. In short, nothing in this case suggests that the Government controlled, coerced, or even influenced Amtrak's decision, made pursuant to corporate policy and private business judgment, to disapprove the advertisement proposed by Lebron. Presented with this question, the Court of Appeals properly applied our precedents and did not impute Amtrak's decision to the Government. I would affirm on this basis and not reverse the Court of Appeals based on a theory that is foreign to this case. Respectfully, I dissent.

Justice Marshall

second_dissenting

Green v. Mansour

https://www.courtlistener.com/opinion/111540/green-v-mansour/

https://www.courtlistener.com/api/rest/v3/clusters/111540/

1985-009

I concur in JUSTICE BRENNAN'S and JUSTICE BLACKMUN'S dissents. I contribute to this proliferation of opinions only to add a few words as to why, even under the view of the Eleventh Amendment accepted by the majority in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), the majority reaches an incorrect result in this case. I JUSTICE BRENNAN'S opinion cogently explains how the decision of the majority today repudiates Quern v. Jordan, 440 U.S. 332 (1979). The Court in that case did not approve notice relief as a "mere case-management device," ante, at 71, nor does the majority suggest how informing class members of state administrative procedures serves a case-management function in federal-court litigation. Rather, the Quern Court, explicitly posing the question whether "the modified notice contemplated by the Seventh Circuit constitute[s] permissible prospective relief or a `retroactive award which requires the payment of funds from the state treasury,' " concluded that "this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side." Quern, supra, at 346-347. II In abandoning the result it reached six years ago, the majority misapplies its own Eleventh Amendment jurisprudence. The majority states that there are two kinds of remedies that can be sought against a state officer: prospective relief "designed to end a continuing violation of federal law," *80 and retrospective relief serving mere "compensatory or deterrence interests." Ante, at 68. Only in the former class of relief, it concludes, do the federal interests involved outweigh the Eleventh Amendment interests implicated by a suit against a state officer in his official capacity.[*] "Prospective" and "retrospective" labels, however, should be irrelevant to analysis of this case. The notice relief at issue here imposes no significant costs on the State, creates no direct liabilities against the State, and respects the institutions of state government. See Quern, supra, at 347-348. This Court has never held that the Eleventh Amendment poses any bar to such relief. Indeed, notice of the availability of possible relief through existing state administrative remedies, where the state agency and state courts would be the sole arbiters of what relief would be granted, assists in the vindication of state law by informing class members that they may have causes of action under that law. In the Eleventh Amendment balance set up by the majority opinion, it is thus hard to see what weight, if any, exists on the State's side of the scale, and why that weight should overcome the interest in vindicating federal law. *81 I would hold that whether the Eleventh Amendment was intended simply to provide that a State cannot be sued in federal court where the basis of jurisdiction is that the plaintiff is a citizen of another State or an alien (as I believe), or was intended to constitutionalize a much broader principle of state sovereign immunity (as the majority believes), there is simply nothing offensive to that Amendment in an order that the State notify class members of the possibility that they may be entitled to relief through the state administrative process. Because that order neither imposes significant costs on the State nor creates any direct liabilities against it, the Quern Court properly placed it "on the Ex parte Young side of the Eleventh Amendment line." 440 U.S., at 347. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. I joined JUSTICE BRENNAN'S dissent in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247 (1985), and I join his dissent in this case. I fully agree that the Court's Eleventh Amendment approach, as demonstrated by the difference between the result in this case and that in Quern v. Jordan, 440 U.S. 332 (1979), is sterile, produces inconsistent decisions, and is in serious need of reconsideration. Cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 539, 546-547 (1985). But I also would reverse the judgment of the Court of Appeals in this case for the additional reason expressed in my dissent (joined by JUSTICES BRENNAN, MARSHALL, and STEVENS) in Atascadero, 473 U. S., at 302, namely, the waiver by Michigan, "as a willing recipient of federal funds," id., at 304, of any Eleventh Amendment barrier that otherwise might exist. The State too easily avoids its responsibilities, and the Court by its decision today allows the State to go its way unimpeded and unburdened with any remedy for those who have been wronged during the period of Michigan's noncompliance with federal law.

I concur in JUSTICE BRENNAN'S and JUSTICE BLACKMUN'S dissents. I contribute to this proliferation of opinions only to add a few words as to why, even under the view of the Eleventh Amendment accepted by the majority in State the majority reaches an incorrect result in this case. I JUSTICE BRENNAN'S opinion cogently explains how the decision of the majority today repudiates The Court in that case did not approve notice relief as a "mere case-management device," ante, at 71, nor does the majority suggest how informing class members of state administrative procedures serves a case-management function in federal-court litigation. Rather, the Court, explicitly posing the question whether "the modified notice contemplated by the Seventh Circuit constitute[s] permissible prospective relief or a `retroactive award which requires the payment of funds from the state treasury,' " concluded that "this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side." II In abandoning the result it reached six years ago, the majority misapplies its own Eleventh Amendment jurisprudence. The majority states that there are two kinds of remedies that can be sought against a state officer: prospective relief "designed to end a continuing violation of federal law," *80 and retrospective relief serving mere "compensatory or deterrence interests." Ante, at 68. Only in the former class of relief, it concludes, do the federal interests involved outweigh the Eleventh Amendment interests implicated by a suit against a state officer in his official capacity.[*] "Prospective" and "retrospective" labels, however, should be irrelevant to analysis of this case. The notice relief at issue here imposes no significant costs on the State, creates no direct liabilities against the State, and respects the institutions of state government. See This Court has never held that the Eleventh Amendment poses any bar to such relief. Indeed, notice of the availability of possible relief through existing state administrative remedies, where the state agency and state courts would be the sole arbiters of what relief would be granted, assists in the vindication of state law by informing class members that they may have causes of action under that law. In the Eleventh Amendment balance set up by the majority opinion, it is thus hard to see what weight, if any, exists on the State's side of the scale, and why that weight should overcome the interest in vindicating federal law. *81 I would hold that whether the Eleventh Amendment was intended simply to provide that a State cannot be sued in federal court where the basis of jurisdiction is that the plaintiff is a citizen of another State or an alien (as I believe), or was intended to constitutionalize a much broader principle of state sovereign immunity (as the majority believes), there is simply nothing offensive to that Amendment in an order that the State notify class members of the possibility that they may be entitled to relief through the state administrative process. Because that order neither imposes significant costs on the State nor creates any direct liabilities against it, the Court properly placed it "on the Ex parte Young side of the Eleventh Amendment line." JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. I joined JUSTICE BRENNAN'S dissent in State and I join his dissent in this case. I fully agree that the Court's Eleventh Amendment approach, as demonstrated by the difference between the result in this case and that in is sterile, produces inconsistent decisions, and is in serious need of reconsideration. Cf. But I also would reverse the judgment of the Court of Appeals in this case for the additional reason expressed in my dissent (joined by JUSTICES BRENNAN, MARSHALL, and STEVENS) in namely, the waiver by Michigan, "as a willing recipient of federal funds," of any Eleventh Amendment barrier that otherwise might exist. The State too easily avoids its responsibilities, and the Court by its decision today allows the State to go its way unimpeded and unburdened with any remedy for those who have been wronged during the period of Michigan's noncompliance with federal law.

Justice Marshall

majority

Gillette v. United States

https://www.courtlistener.com/opinion/108285/gillette-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108285/

1970-057

These cases present the question whether conscientious objection to a particular war, rather than objection to war as such, relieves the objector from responsibilities of military training and service. Specifically, we are called upon to decide whether conscientious scruples relating to a particular conflict are within the purview of established provisions[1] relieving conscientious objectors to war from military service. Both petitioners also invoke constitutional principles barring government interference with the exercise of religion and requiring governmental neutrality in matters of religion. In No. 85, petitioner Gillette was convicted of wilful failure to report for induction into the armed forces. Gillette defended on the ground that he should have been ruled exempt from induction as a conscientious objector to war. In support of his unsuccessful request for classification as a conscientious objector, this petitioner had stated his willingness to participate in a war of national defense or a war sponsored by the United Nations as a peace-keeping measure, but declared his opposition to American military operations in Vietnam, which he characterized as "unjust." Petitioner concluded that he could not in conscience enter and serve in the armed forces during the period of the Vietnam conflict. Gillette's view of his duty to abstain from any involvement in a war seen as unjust is, in his words, "based on a humanist approach to religion," and his personal decision concerning military service was guided by fundamental principles of conscience and deeply held views about the purpose and obligation of human existence. *440 The District Court determined that there was a basis in fact to support administrative denial of exemption in Gillette's case. The denial of exemption was upheld, and Gillette's defense to the criminal charge rejected, not because of doubt about the sincerity or the religious character of petitioner's objection to military service, but because his objection ran to a particular war. In affirming the conviction, the Court of Appeals concluded that Gillette's conscientious beliefs "were specifically directed against the war in Vietnam," while the relevant exemption provision of the Military Selective Service Act of 1967, 50 U.S. C. App. § 456 (j) (1964 ed., Supp. V), "requires opposition `to participation in war in any form.' " 420 F.2d 298, 299-300 (CA2 1970). In No. 325, petitioner Negre, after induction into the Army, completion of basic training, and receipt of orders for Vietnam duty, commenced proceedings looking to his discharge as a conscientious objector to war. Application for discharge was denied, and Negre sought judicial relief by habeas corpus. The District Court found a basis in fact for the Army's rejection of petitioner's application for discharge. Habeas relief was denied, and the denial was affirmed on appeal, because, in the language of the Court of Appeals, Negre "objects to the war in Vietnam, not to all wars," and therefore does "not qualify for separation [from the Army], as a conscientious objector."[2] 418 F.2d 908, 909-910 (CA9 1969). Again, no question is raised as to the sincerity or the religious quality of this petitioner's views. In line with religious counselling and numerous religious texts, Negre, *441 a devout Catholic, believes that it is his duty as a faithful Catholic to discriminate between "just" and "unjust" wars, and to forswear participation in the latter. His assessment of the Vietnam conflict as an unjust war became clear in his mind after completion of infantry training, and Negre is now firmly of the view that any personal involvement in that war would contravene his conscience and "all that I had been taught in my religious training." We granted certiorari in these cases, 399 U.S. 925 (1970), in order to resolve vital issues concerning the exercise of congressional power to raise and support armies, as affected by the religious guarantees of the First Amendment. We affirm the judgments below in both cases. I Each petitioner claims a nonconstitutional right to be relieved of the duty of military service in virtue of his conscientious scruples.[3] Both claims turn on the proper construction of § 6 (j) of the Military Selective Service Act of 1967, 50 U.S. C. App. § 456 (j) (1964 ed., Supp. V), which provides: "Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form."[4] *442 This language controls Gillette's claim to exemption, which was asserted administratively prior to the point of induction. Department of Defense Directive No. 1300.6 (May 10, 1968), prescribes that post-induction claims to conscientious objector status shall be honored, if valid, by the various branches of the armed forces.[5] Section 6 (j) of the Act, as construed by the courts, is incorporated by the various service regulations issued pursuant to the Directive,[6] and thus the standards for measuring claims of in-service objectors, such as Negre, are the same as the statutory tests applicable in a pre-induction situation. *443 For purposes of determining the statutory status of conscientious objection to a particular war, the focal language of § 6 (j) is the phrase, "conscientiously opposed to participation in war in any form." This language, on a straightforward reading, can bear but one meaning; that conscientious scruples relating to war and military service must amount to conscientious opposition to participating personally in any war and all war. See Welsh v. United States, 398 U.S. 333, 340, 342 (1970); id., at 347, 357 (concurring in result). See also United States v. Kauten, 133 F.2d 703, 707 (CA2 1943). It matters little for present purposes whether the words, "in any form," are read to modify "war" or "participation." On the first reading, conscientious scruples must implicate "war in any form," and an objection involving a particular war rather than all war would plainly not be covered by § 6 (j). On the other reading, an objector must oppose "participation in war." It would strain good sense to read this phrase otherwise than to mean "participation in all war." For the word "war" would still be used in an unqualified, generic sense, meaning war as such. Thus, however the statutory clause be parsed, it remains that conscientious objection must run to war in any form.[7] A different result cannot be supported by reliance on the materials of legislative history.[8] Petitioners and *444 amici point to no episode or pronouncement in the legislative history of § 6 (j), or of predecessor provisions, that tends to overthrow the obvious interpretation of the words themselves.[9] *445 It is true that the legislative materials reveal a deep concern for the situation of conscientious objectors to war, who absent special status would be put to a hard choice between contravening imperatives of religion and conscience or suffering penalties. Moreover, there are clear indications that congressional reluctance to impose such a choice stems from a recognition of the value of conscientious action to the democratic community at large, and from respect for the general proposition that fundamental principles of conscience and religious duty may sometimes override the demands of the secular state. See United States v. Seeger, 380 U.S. 163, 170-172 (1965); United States v. Macintosh, 283 U.S. 605, 631-634 (1931) (dissenting opinion). See generally Selective Service System Monograph No. 11, Conscientious Objection (1950). But there are countervailing considerations, which are also the concern of Congress,[10] and the legislative materials simply do not support the view that Congress intended to recognize any conscientious claim whatever as a basis for relieving the claimant from the general responsibility or the various incidents of military service. The claim that is recognized by § 6 (j) is a *446 claim of conscience running against war as such. This claim, not one involving opposition to a particular war only, was plainly the focus of congressional concern. Finding little comfort in the wording or the legislative history of § 6 (j), petitioners rely heavily on dicta in the decisional law dealing with objectors whose conscientious scruples ran against war as such, but who indicated certain reservations of an abstract nature. It is instructive that none of the cases relied upon embraces an interpretation of § 6 (j) at variance with the construction we adopt today.[11] Sicurella v. United States, 348 U.S. 385 (1955), presented the only previous occasion for this Court to focus on the "participation in war in any form" language of § 6 (j). In Sicurella a Jehovah's Witness who opposed participation in secular wars was held to possess the requisite conscientious scruples concerning war, although he was not opposed to participation in a "theocratic war" commanded by Jehovah. The Court noted that the "theocratic war" reservation was highly abstract—no such war had occurred since biblical times, and none was contemplated. Congress, on the other hand, had in mind "real shooting wars," id., at 391, and Sicurella's abstract reservations did not undercut his conscientious opposition to participating in such wars. Plainly, Sicurella cannot be read to support the claims of those, like petitioners, *447 who for a variety of reasons consider one particular "real shooting war" to be unjust, and therefore oppose participation in that war.[12] It should be emphasized that our cases explicating the "religious training and belief" clause of § 6 (j), or cognate clauses of predecessor provisions, are not relevant to the present issue. The question here is not whether these petitioners' beliefs concerning war are "religious" in nature. Thus, petitioners' reliance on United States v. Seeger, 380 U.S. 163, and Welsh v. United States, 398 U.S. 333, is misplaced. Nor do we decide that conscientious objection to a particular war necessarily falls within § 6 (j)'s expressly excluded class[13] of "essentially political, sociological, or philosophical views, or a merely personal moral code." Rather, we hold that Congress intended to exempt persons who oppose participating in all war—"participation in war in any form"— and that persons who object solely to participation in a particular war are not within the purview of the exempting section, even though the latter objection may have such roots in a claimant's conscience and personality that it is "religious" in character. A further word may be said to clarify our statutory holding. Apart from abstract theological reservations, two other sorts of reservations concerning use of force have been thought by lower courts not to defeat a conscientious *448 objector claim. Willingness to use force in self-defense, in defense of home and family, or in defense against immediate acts of aggressive violence toward other persons in the community, has not been regarded as inconsistent with a claim of conscientious objection to war as such. See, e. g., United States v. Haughton, 413 F.2d 736, 740-742 (CA9 1969); United States v. Carroll, 398 F.2d 651, 655 (CA3 1968). But surely willingness to use force defensively in the personal situations mentioned is quite different from willingness to fight in some wars but not in others. Cf. Sicurella v. United States, 348 U. S., at 389. Somewhat more apposite to the instant situation are cases dealing with persons who oppose participating in all wars, but cannot say with complete certainty that their present convictions and existing state of mind are unalterable. See, e. g., United States v. Owen, 415 F.2d 383, 390 (CA8 1969). Unwillingness to deny the possibility of a change of mind, in some hypothetical future circumstances, may be no more than humble good sense, casting no doubt on the claimant's present sincerity of belief. At any rate there is an obvious difference between present sincere objection to all war, and present opposition to participation in a particular conflict only. II Both petitioners argue that § 6 (j), construed to cover only objectors to all war, violates the religious clauses of the First Amendment. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Petitioners contend that Congress interferes with free exercise of religion by failing to relieve objectors to a particular war from military service, when the objection is religious or conscientious in nature. While the two religious clauses—pertaining to "free exercise" and *449 "establishment" of religion—overlap and interact in many ways, see Abington School District v. Schempp, 374 U.S. 203, 222-223 (1963); Freund, Public Aid To Parochial Schools, 82 Harv. L. Rev. 1680, 1684 (1969), it is best to focus first on petitioners' other contention, that § 6 (j) is a law respecting the establishment of religion. For despite free exercise overtones, the gist of the constitutional complaint is that § 6 (j) impermissibly discriminates among types of religious belief and affiliation.[14] On the assumption that these petitioners' beliefs concerning war have roots that are "religious" in nature, within the meaning of the Amendment as well as this Court's decisions construing § 6 (j), petitioners ask how their claims to relief from military service can be permitted to fail, while other "religious" claims are upheld by the Act. It is a fact that § 6 (j), properly construed, has this effect. Yet we cannot conclude in mechanical fashion, or at all, that the section works an establishment of religion. An attack founded on disparate treatment of "religious" claims invokes what is perhaps the central purpose of the Establishment Clause—the purpose of ensuring governmental neutrality in matters of religion. See Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968); Everson v. Board of Education, 330 U.S. 1, 15-16 (1947). Here *450 there is no claim that exempting conscientious objectors to war amounts to an overreaching of secular purposes and an undue involvement of government in affairs of religion. Cf. Walz v. Tax Commission, 397 U.S. 664, 675 (1970); id., at 695 (opinion of HARLAN, J.). To the contrary, petitioners ask for greater "entanglement" by judicial expansion of the exemption to cover objectors to particular wars. Necessarily the constitutional value at issue is "neutrality." And as a general matter it is surely true that the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization. See Engel v. Vitale, 370 U.S. 421, 430-431 (1962); Torcaso v. Watkins, 367 U.S. 488, 495 (1961). The metaphor of a "wall" or impassable barrier between Church and State, taken too literally, may mislead constitutional analysis, see Walz v. Tax Commission, supra, at 668-669; Zorach v. Clauson, 343 U.S. 306, 312-313 (1952), but the Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact. Abington School District v. Schempp, 374 U. S., at 222; id., at 231 (BRENNAN, J., concurring); id., at 305 (Goldberg, J., concurring). A The critical weakness of petitioners' establishment claim arises from the fact that § 6 (j), on its face, simply does not discriminate on the basis of religious affiliation or religious belief, apart of course from beliefs concerning war. The section says that anyone who is conscientiously opposed to all war shall be relieved of military service. The specified objection must have a grounding in "religious training and belief," but no particular *451 sectarian affiliation or theological position is required. The Draft Act of 1917, § 4, 40 Stat. 78, extended relief only to those conscientious objectors affiliated with some "well-recognized religious sect or organization" whose principles forbade members' participation in war, but the attempt to focus on particular sects apparently broke down in administrative practice, Welsh v. United States, 398 U. S., at 367 n. 19 (concurring in result), and the 1940 Selective Training and Service Act, § 5 (g), 54 Stat. 889, discarded all sectarian restriction.[15] Thereafter Congress has framed the conscientious objector exemption in broad terms compatible with "its long-established policy of not picking and choosing among religious beliefs." United States v. Seeger, 380 U. S., at 175. Thus, there is no occasion to consider the claim that when Congress grants a benefit expressly to adherents of one religion, courts must either nullify the grant or somehow extend the benefit to cover all religions. For § 6 (j) does not single out any religious organization or religious creed for special treatment. Rather petitioners' contention is that since Congress has recognized one sort of conscientious objection concerning war, whatever its religious basis, the Establishment Clause commands that another, different objection be carved out and protected by the courts.[16] Properly phrased, petitioners' contention is that the special statutory status accorded conscientious objection to all war, but not objection to a particular war, works *452 a de facto discrimination among religions. This happens, say petitioners, because some religious faiths themselves distinguish between personal participation in "just" and in "unjust" wars, commending the former and forbidding the latter, and therefore adherents of some religious faiths—and individuals whose personal beliefs of a religious nature include the distinction—cannot object to all wars consistently with what is regarded as the true imperative of conscience. Of course, this contention of de facto religious discrimination, rendering § 6 (j) fatally underinclusive, cannot simply be brushed aside. The question of governmental neutrality is not concluded by the observation that § 6 (j) on its face makes no discrimination between religions, for the Establishment Clause forbids subtle departures from neutrality, "religious gerrymanders," as well as obvious abuses. Walz v. Tax Commission, 397 U. S., at 696 (opinion of HARLAN, J.). See also Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (opinion of Warren, C. J.); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 213, 232 (1948) (opinion of Frankfurter, J.). Still a claimant alleging "gerrymander" must be able to show the absence of a neutral, secular basis for the lines government has drawn. See Epperson v. Arkansas, 393 U. S., at 107-109; Board of Education v. Allen, 392 U.S. 236, 248 (1968); McGowan v. Maryland, 366 U.S. 420, 442-444 (1961); id., at 468 (separate opinion of Frankfurter, J.). For the reasons that follow, we believe that petitioners have failed to make the requisite showing with respect to § 6 (j). Section 6 (j) serves a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions.[17] There are considerations *453 of a pragmatic nature, such as the hopelessness of converting a sincere conscientious objector into an effective fighting man, Welsh v. United States, 398 U. S., at 369 (WHITE, J., dissenting), but no doubt the section reflects as well the view that "in the forum of conscience, duty to a moral power higher than the State has always been maintained." United States v. Macintosh, 283 U.S. 605, 633 (1931) (Hughes, C. J., dissenting). See United States v. Seeger, 380 U. S., at 170-172. We have noted that the legislative materials show congressional concern for the hard choice that conscription would impose on conscientious objectors to war, as well as respect for the value of conscientious action and for the principle of supremacy of conscience.[18] Naturally the considerations just mentioned are affirmative in character, going to support the existence of an exemption rather than its restriction specifically to persons who object to all war. The point is that these affirmative purposes are neutral in the sense of the Establishment Clause. Quite apart from the question whether the Free Exercise Clause might require some sort of exemption,[19] it is hardly impermissible for Congress to attempt to accommodate free exercise values, in line with "our happy tradition" of "avoiding unnecessary clashes with the dictates of conscience." United States v. Macintosh, supra, at 634 (Hughes, C. J., dissenting). See Abington School District v. Schempp, 374 U. S., at 294-299 (BRENNAN, J., concurring); id., at 306 (Goldberg, J., concurring); id., at 309 (STEWART, J., dissenting). *454 See also Welsh v. United States, 398 U. S., at 370-373 (WHITE, J., dissenting). "Neutrality" in matters of religion is not inconsistent with "benevolence" by way of exemptions from onerous duties, Walz v. Tax Commission, 397 U. S., at 669, so long as an exemption is tailored broadly enough that it reflects valid secular purposes. In the draft area for 30 years the exempting provision has focused on individual conscientious belief, not on sectarian affiliation. The relevant individual belief is simply objection to all war, not adherence to any extraneous theological viewpoint. And while the objection must have roots in conscience and personality that are "religious" in nature, this requirement has never been construed to elevate conventional piety or religiosity of any kind above the imperatives of a personal faith. In this state of affairs it is impossible to say that § 6 (j) intrudes upon "voluntarism" in religious life, see id., at 694-696 (opinion of HARLAN, J.), or that the congressional purpose in enacting § 6 (j) is to promote or foster those religious organizations that traditionally have taught the duty to abstain from participation in any war. A claimant, seeking judicial protection for his own conscientious beliefs, would be hard put to argue that § 6 (j) encourages membership in putatively "favored" religious organizations, for the painful dilemma of the sincere conscientious objector arises precisely because he feels himself bound in conscience not to compromise his beliefs or affiliations. B We conclude not only that the affirmative purposes underlying § 6 (j) are neutral and secular, but also that valid neutral reasons exist for limiting the exemption to objectors to all war, and that the section therefore cannot be said to reflect a religious preference. *455 Apart from the Government's need for manpower, perhaps the central interest involved in the administration of conscription laws is the interest in maintaining a fair system for determining "who serves when not all serve."[20] When the Government exacts so much, the importance of fair, evenhanded, and uniform decisionmaking is obviously intensified. The Government argues that the interest in fairness would be jeopardized by expansion of § 6 (j) to include conscientious objection to a particular war. The contention is that the claim to relief on account of such objection is intrinsically a claim of uncertain dimensions, and that granting the claim in theory would involve a real danger of erratic or even discriminatory decisionmaking in administrative practice. A virtually limitless variety of beliefs are subsumable under the rubric, "objection to a particular war."[21] All the factors that might go into nonconscientious dissent from policy, also might appear as the concrete basis of an objection that has roots as well in conscience and religion. Indeed, over the realm of possible situations, opposition to a particular war may more likely be political and nonconscientious, than otherwise. See United States v. Kauten, 133 F. 2d, at 708. The difficulties of sorting *456 the two, with a sure hand, are considerable. Moreover, the belief that a particular war at a particular time is unjust is by its nature changeable and subject to nullification by changing events. Since objection may fasten on any of an enormous number of variables, the claim is ultimately subjective, depending on the claimant's view of the facts in relation to his judgment that a given factor or congeries of factors colors the character of the war as a whole. In short, it is not at all obvious in theory what sorts of objections should be deemed sufficient to excuse an objector, and there is considerable force in the Government's contention that a program of excusing objectors to particular wars may be "impossible to conduct with any hope of reaching fair and consistent results . . . ." Brief 28. For their part, petitioners make no attempt to provide a careful definition of the claim to exemption that they ask the courts to carve out and protect. They do not explain why objection to a particular conflict—much less an objection that focuses on a particular facet of a conflict —should excuse the objector from all military service whatever, even from military operations that are connected with the conflict at hand in remote or tenuous ways.[22] They suggest no solution to the problems arising from the fact that altered circumstances may quickly render the objection to military service moot. To view the problem of fairness and evenhanded decisionmaking, in the present context, as merely a commonplace chore of weeding out "spurious claims," is to minimize substantial difficulties of real concern to a responsible legislative body. For example, under the petitioners' unarticulated scheme for exemption, an objector's claim to exemption might be based on some feature of a current conflict that most would regard as incidental, *457 or might be predicated on a view of the facts that most would regard as mistaken. The particular complaint about the war may itself be "sincere," but it is difficult to know how to judge the "sincerity" of the objector's conclusion that the war in toto is unjust and that any personal involvement would contravene conscience and religion. To be sure we have ruled, in connection with § 6 (j), that "the `truth' of a belief is not open to question"; rather, the question is whether the objector's beliefs are "truly held." United States v. Seeger, 380 U. S., at 185. See also United States v. Ballard, 322 U.S. 78 (1944). But we must also recognize that "sincerity" is a concept that can bear only so much adjudicative weight. Ours is a Nation of enormous heterogeneity in respect of political views, moral codes, and religious persuasions. It does not bespeak an establishing of religion for Congress to forgo the enterprise of distinguishing those whose dissent has some conscientious basis from those who simply dissent. There is a danger that as between two would-be objectors, both having the same complaint against a war, that objector would succeed who is more articulate, better educated, or better counseled. There is even a danger of unintended religious discrimination— a danger that a claim's chances of success would be greater the more familiar or salient the claim's connection with conventional religiosity could be made to appear. At any rate, it is true that "the more discriminating and complicated the basis of classification for an exemption—even a neutral one—the greater the potential for state involvement" in determining the character of persons' beliefs and affiliations, thus "entangl[ing] government in difficult classifications of what is or is not religious," or what is or is not conscientious. Walz v. Tax Commission, 397 U. S., at 698-699 (opinion of *458 HARLAN, J.). Cf. Presbyterian Church v. Mary Elizabeth Blue Hull Church, 393 U.S. 440 (1969). While the danger of erratic decisionmaking unfortunately exists in any system of conscription that takes individual differences into account, no doubt the dangers would be enhanced if a conscientious objection of indeterminate scope were honored in theory. In addition to the interest in fairness, the Government contends that neutral, secular reasons for the line drawn by § 6 (j)—between objection to all war and objection to a particular war—may be found in the nature of the conscientious claim that these petitioners assert. Opposition to a particular war, states the Government's brief, necessarily involves a judgment "that is political and particular," one "based on the same political, sociological and economic factors that the government necessarily considered" in deciding to engage in a particular conflict. Brief 24-26. Taken in a narrow sense, these considerations do not justify the distinction at issue, for however "political and particular" the judgment underlying objection to a particular war, the objection still might be rooted in religion and conscience, and although the factors underlying that objection were considered and rejected in the process of democratic decisionmaking, likewise the viewpoint of an objector to all war was no doubt considered and "necessarily" rejected as well. Nonetheless, it can be seen on a closer view that this line of analysis, conjoined with concern for fairness, does support the statutory distinction. Tacit at least in the Government's view of the instant cases is the contention that the limits of § 6 (j) serve an overriding interest in protecting the integrity of democratic decisionmaking against claims to individual noncompliance. Despite emphasis on claims that have a "political and particular" component, the logic of the *459 contention is sweeping. Thus the "interest" invoked is highly problematical, for it would seem to justify governmental refusal to accord any breathing space whatever to noncompliant conduct inspired by imperatives of religion and conscience. On the other hand, some have perceived a danger that exempting persons who dissent from a particular war, albeit on grounds of conscience and religion in part, would "open the doors to a general theory of selective disobedience to law" and jeopardize the binding quality of democratic decisions. Report of the National Advisory Commission on Selective Service, In Pursuit of Equity: Who Serves When Not All Serve? 50 (1967). See also Hamilton v. Regents, 293 U.S. 245, 268 (1934) (Cardozo, J., concurring). Other fields of legal obligation aside, it is undoubted that the nature of conscription, much less war itself, requires the personal desires and perhaps the dissenting views of those who must serve to be subordinated in some degree to the pursuit of public purposes. It is also true that opposition to a particular war does depend inter alia upon particularistic factual beliefs and policy assessments, beliefs and assessments that presumably were overridden by the government that decides to commit lives and resources to a trial of arms. Further, it is not unreasonable to suppose that some persons who are not prepared to assert a conscientious objection, and instead accept the hardships and risks of military service, may well agree at all points with the objector, yet conclude, as a matter of conscience, that they are personally bound by the decision of the democratic process. The fear of the National Advisory Commission on Selective Service, apparently, is that exemption of objectors to particular wars would weaken the resolve of those who otherwise would feel themselves bound to serve despite personal cost, uneasiness at the *460 prospect of violence, or even serious moral reservations or policy objections concerning the particular conflict. We need not and do not adopt the view that a categorical, global "interest" in stifling individualistic claims to noncompliance, in respect of duties generally exacted, is the neutral and secular basis of § 6 (j). As is shown by the long history of the very provision under discussion, it is not inconsistent with orderly democratic government for individuals to be exempted by law, on account of special characteristics, from general duties of a burdensome nature. But real dangers—dangers of the kind feared by the Commission—might arise if an exemption were made available that in its nature could not be administered fairly and uniformly over the run of relevant fact situations. Should it be thought that those who go to war are chosen unfairly or capriciously, then a mood of bitterness and cynicism might corrode the spirit of public service and the values of willing performance of a citizen's duties that are the very heart of free government. In short, the considerations mentioned in the previous paragraph, when seen in conjunction with the central problem of fairness, are without question properly cognizable by Congress. In light of these valid concerns, we conclude that it is supportable for Congress to have decided that the objector to all war—to all killing in war—has a claim that is distinct enough and intense enough to justify special status, while the objector to a particular war does not. Of course, we do not suggest that Congress would have acted irrationally or unreasonably had it decided to exempt those who object to particular wars. Our analysis of the policies of § 6 (j) is undertaken in order to determine the existence vel non of a neutral, secular justification for the lines Congress has drawn. We find that justifying reasons exist and therefore hold that the Establishment Clause is not violated. *461 III Petitioner's remaining contention is that Congress interferes with the free exercise of religion by conscripting persons who oppose a particular war on grounds of conscience and religion. Strictly viewed, this complaint does not implicate problems of comparative treatment of different sorts of objectors, but rather may be examined in some isolation from the circumstance that Congress has chosen to exempt those who conscientiously object to all war.[23] And our holding that § 6 (j) comports with the Establishment Clause does not automatically settle the present issue. For despite a general harmony of purpose between the two religious clauses of the First Amendment, the Free Exercise Clause no doubt has a reach of its own. Abington School District v. Schempp, 374 U. S., at 222-223. Nonetheless, our analysis of § 6 (j) for Establishment Clause purposes has revealed governmental interests of a kind and weight sufficient to justify under the Free Exercise Clause the impact of the conscription laws on those who object to particular wars. Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government. See Cantwell v. Connecticut, *462 310 U.S. 296, 303-304 (1940); Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905); cf. Cleveland v. United States, 329 U.S. 14, 20 (1946). To be sure, the Free Exercise Clause bars "governmental regulation of religious beliefs as such," Sherbert v. Verner, 374 U.S. 398, 402 (1963), or interference with the dissemination of religious ideas. See Fowler v. Rhode Island, 345 U.S. 67 (1953); Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania, 319 U.S. 105 (1943). It prohibits misuse of secular governmental programs "to impede the observance of one or all religions or . . . to discriminate invidiously between religions, . . . even though the burden may be characterized as being only indirect." Braunfeld v. Brown, 366 U. S., at 607 (opinion of Warren, C. J.). And even as to neutral prohibitory or regulatory laws having secular aims, the Free Exercise Clause may condemn certain applications clashing with imperatives of religion and conscience, when the burden on First Amendment values is not justifiable in terms of the Government's valid aims. See id.; Sherbert v. Verner, supra. See generally Clark, Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327 (1969). However, the impact of conscription on objectors to particular wars is far from unjustified. The conscription laws, applied to such persons as to others, are not designed to interfere with any religious ritual or practice, and do not work a penalty against any theological position. The incidental burdens felt by persons in petitioners' position are strictly justified by substantial governmental interests that relate directly to the very impacts questioned. And more broadly, of course, there is the Government's interest in procuring the manpower necessary for military purposes, pursuant to the constitutional grant of power to Congress to raise and support armies. Art. I, § 8. *463 IV Since petitioners' statutory and constitutional claims to relief from military service are without merit, it follows that in Gillette's case (No. 85) there was a basis in fact to support administrative denial of exemption, and that in Negre's case (No. 325) there was a basis in fact to support the Army's denial of a discharge. Accordingly, the judgments below are Affirmed. MR. JUSTICE BLACK concurs in the Court's judgment and in Part I of the opinion of the Court. MR. JUSTICE DOUGLAS, dissenting in No. 85.[*] Gillette's objection is to combat service in the Vietnam war, not to wars in general, and the basis of his objection is his conscience. His objection does not put him into the statutory exemption which extends to one "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form."[1] He stated his views as follows: "I object to any assignment in the United States Armed Forces while this unnecessary and unjust war is being waged, on the grounds of religious belief specifically `Humanism.' This essentially means respect and love for man, faith in his inherent goodness and perfectability, and confidence in his capability to improve some of the pains of the human condition." This position is substantially the same as that of Sisson in United States v. Sisson, 297 F. Supp. 902, appeal *464 dismissed, 399 U.S. 267, where the District Court summarized the draftee's position as follows: "Sisson's table of ultimate values is moral and ethical. It reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion. It is just as much a residue of culture, early training, and beliefs shared by companions and family. What another derives from the discipline of a church, Sisson derives from the discipline of conscience." 297 F. Supp., at 905. There is no doubt that the views of Gillette are sincere, genuine, and profound. The District Court in the present case faced squarely the issue presented in Sisson and being unable to distinguish the case on the facts, refused to follow Sisson. The question, Can a conscientious objector, whether his objection be rooted in "religion" or in moral values, be required to kill? has never been answered by the Court.[2]Hamilton v. Regents, 293 U.S. 245, did no more than hold that the Fourteenth Amendment did not require a State to make its university available to one who would not take military training. United States v. Macintosh, 283 U.S. 605, denied naturalization to a person who "would not promise in advance to bear arms in defense of the United States unless he believed the war to be morally justified." Id., at 613. The question of compelling a man to kill against his conscience was not squarely involved. Most of the talk in the majority opinion concerned "serving in the armed forces of the *465 Nation in time of war." Id., at 623. Such service can, of course, take place in noncombatant roles. The ruling was that such service is "dependent upon the will of Congress and not upon the scruples of the individual, except as Congress provides." Ibid. The dicta of the Court in the Macintosh case squint towards the denial of Gillette's claim, though as I have said, the issue was not squarely presented. Yet if dicta are to be our guide, my choice is the dicta of Chief Justice Hughes who, dissenting in Macintosh, spoke as well for Justices Holmes, Brandeis, and Stone: "Nor is there ground, in my opinion, for the exclusion of Professor Macintosh because his conscientious scruples have particular reference to wars believed to be unjust. There is nothing new in such an attitude. Among the most eminent statesmen here and abroad have been those who condemned the action of their country in entering into wars they thought to be unjustified. Agreements for the renunciation of war presuppose a preponderant public sentiment against wars of aggression. If, while recognizing the power of Congress, the mere holding of religious or conscientious scruples against all wars should not disqualify a citizen from holding office in this country, or an applicant otherwise qualified from being admitted to citizenship, there would seem to be no reason why a reservation of religious or conscientious objection to participation in wars believed to be unjust should constitute such a disqualification." Id., at 635. I think the Hughes view is the constitutional view. It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the *466 bedrock of free speech as well as religion. The implied First Amendment right of "conscience" is certainly as high as the "right of association" which we recognized in Shelton v. Tucker, 364 U.S. 479, and NAACP v. Alabama, 357 U.S. 449. Some indeed have thought it higher.[3] Conscience is often the echo of religious faith. But, as this case illustrates, it may also be the product of travail, meditation, or sudden revelation related to a moral comprehension of the dimensions of a problem, not to a religion in the ordinary sense. Tolstoy[4] wrote of a man, one Van der Veer, "who, as he himself says, is not a Christian, and who refuses military service, not from religious motives, but from motives of the simplest kind, motives intelligible and common to all men, of whatever religion or nation, whether Catholic, Mohammedan, Buddhist, Confucian, whether Spaniards or Japanese. "Van der Veer refuses military service, not because he follows the commandment. `Thou shalt do no murder,' not because he is a Christian, but because he holds murder to be opposed to human nature." *467 Tolstoy[5] goes on to say: "Van der Veer says he is not a Christian. But the motives of his refusal and action are Christian. He refuses because he does not wish to kill a brother man; he does not obey, because the commands of his conscience are more binding upon him than the commands of men. . . . Thereby he shows that Christianity is not a sect or creed which some may profess and others reject; but that it is naught else than a life's following of that light of reason which illumines all men. . . . "Those men who now behave rightly and reasonably do so, not because they follow prescriptions of Christ, but because that line of action which was pointed out eighteen hundred years ago has now become identified with human conscience." The "sphere of intellect and spirit," as we described the domain of the First Amendment in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, was recognized in United States v. Seeger, 380 U.S. 163, where we gave a broad construction to the statutory exemption of those who by their religious training or belief are conscientiously opposed to participation in war in any form. We said: "A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by *468 the God of those admittedly qualifying for the exemption comes within the statutory definition." Id., at 176.[6] Seeger does not answer the present question as Gillette is not "opposed to participation in war in any form." But the constitutional infirmity in the present Act seems obvious once "conscience" is the guide. As Chief Justice Hughes said in the Macintosh case: "But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." 283 U.S., at 633-634. The law as written is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples. MR. JUSTICE BLACK once said: "The First Amendment has lost much if the religious follower and the atheist[7] are no longer to be *469 judicially regarded as entitled to equal justice under law." Zorach v. Clauson, 343 U.S. 306, 320 (dissenting). We said as much in our recent decision in Epperson v. Arkansas, 393 U.S. 97, where we struck down as unconstitutional a state law prohibiting the teaching of the doctrine of evolution in the public schools: "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Id., at 103-104. While there is no Equal Protection Clause in the Fifth Amendment, our decisions are clear that invidious classifications violate due process. Bolling v. Sharpe, 347 U.S. 497, 500, held that segregation by race in the public schools was an invidious discrimination, and Schneider v. Rusk, 377 U.S. 163, 168-169, reached the same result based on penalties imposed on naturalized, not nativeborn, citizens. A classification of "conscience" based on a "religion" and a "conscience" based on more generalized, philosophical grounds is equally invidious by reason of our First Amendment standards. I had assumed that the welfare of the single human soul was the ultimate test of the vitality of the First Amendment. This is an appropriate occasion to give content to our dictum in Board of Education v. Barnette, supra, at 642: "[F]reedom to differ is not limited to things that do not matter much. . . . The test of its substance *470 is the right to differ as to things that touch the heart of the existing order." I would reverse this judgment. MR. JUSTICE DOUGLAS, dissenting in No. 325, Negre v. Larsen. I approach the facts of this case with some diffidence, as they involve doctrines of the Catholic Church in which I was not raised. But we have on one of petitioner's briefs an authoritative lay Catholic scholar, Dr. John T. Noonan, Jr., and from that brief I deduce the following: Under the doctrines of the Catholic Church a person has a moral duty to take part in wars declared by his government so long as they comply with the tests of his church for just wars.[1] Conversely, a Catholic has a moral duty not to participate in unjust wars.[2] *471 The Fifth Commandment, "Thou shall not kill," provides a basis for the distinction between just and unjust wars. In the 16th century Francisco Victoria, Dominican master of the University of Salamanca and pioneer in international law, elaborated on the distinction. "If a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his prince. This is clear, for no one can authorize the killing of an innocent person." He realized not all men had the information of the prince and his counsellors on the causes of a war, but where "the proofs and tokens of the injustice of the war may be such that ignorance would be no excuse even to the subjects" who are not normally informed, that ignorance will not be an excuse if they participate.[3] Well over 400 years later, today, the Baltimore Catechism makes an exception to the Fifth Commandment for a "soldier fighting a just war."[4] No one can tell a Catholic that this or that war is either just or unjust. This is a personal decision that an individual must make on the basis of his own conscience after studying the facts.[5] *472 Like the distinction between just and unjust wars, the duty to obey conscience is not a new doctrine in the Catholic Church. When told to stop preaching by the Sanhedrin, to which they were subordinate by law, "Peter and the apostles answered and said, `We must obey God rather than men.' "[6] That duty has not changed. Pope Paul VI has expressed it as follows: "On his part, man perceives and acknowledges the imperatives of the divine law through the mediation of conscience. In all his activity a man is bound to follow his conscience, in order that he may come to God, the end and purpose of life."[7] While the fact that the ultimate determination of whether a war is unjust rests on individual conscience, the Church has provided guides. Francisco Victoria referred to "killing of an innocent person." World War II had its impact on the doctrine. Writing shortly after the war Cardinal Ottaviani stated: "[M]odern wars can *473 never fulfil those conditions which (as we stated earlier on in this essay) govern—theoretically—a just and lawful war. Moreover, no conceivable cause could ever be sufficient justification for the evils, the slaughter, the destruction, the moral and religious upheavals which war today entails. In practice, then, a declaration of war will never be justifiable."[8] The full impact of the horrors of modern war were emphasized in the Pastoral Constitution announced by Vatican II: "The development of armaments by modern science has immeasurably magnified the horrors and wickedness of war. Warfare conducted with these weapons can inflict immense and indiscriminate havoc which goes far beyond the bounds of legitimate defense. Indeed, if the kind of weapons now stocked in the arsenals of the great powers were to be employed to the fullest, the result would be the almost complete reciprocal slaughter of one side by the other, not to speak of the widespread devastation that would follow in the world and the deadly after-effects resulting from the use of such arms. "All these factors force us to undertake a completely fresh reappraisal of war. . . ." "[I]t is one thing to wage a war of self-defense; it is quite another to seek to impose domination on another nation. . . ." The Pastoral Constitution announced that "[e]very act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man which merits firm and unequivocal condemnation."[9] Louis Negre is a devout Catholic. In 1951 when he was four, his family immigrated to this country from *474 France.[10] He attended Catholic schools in Bakersfield, California, until graduation from high school. Then he attended Bakersfield Junior College for two years. Following that, he was inducted into the Army. At the time of his induction he had his own convictions about the Vietnam war and the Army's goals in the war. He wanted, however, to be sure of his convictions. "I agreed to myself that before making any decision or taking any type of stand on the issue, I would permit myself to see and understand the Army's explanation of its reasons for violence in Vietnam. For, without getting an insight on the subject, it would be unfair for me to say anything, without really knowing the answer."[11] On completion of his advanced infantry training, "I knew that if I would permit myself to go to Vietnam I would be violating my own concepts of natural law and would be going against all that I had been taught in my religious training." Negre applied for a discharge as a conscientious objector. His application was denied. He then refused to comply with an order to proceed for shipment to Vietnam. A general court-martial followed, but he was acquitted. After that he filed this application for discharge as a conscientious objector. *475 Negre is opposed under his religious training and beliefs to participation in any form in the war in Vietnam. His sincerity is not questioned. His application for a discharge, however, was denied because his religious training and beliefs led him to oppose only a particular war[12] which according to his conscience was unjust. For the reasons I have stated in my dissent in the Gillette case decided this day, I would reverse the judgment.

These cases present the question whether conscientious objection to a particular war, rather than objection to war as such, relieves the objector from responsibilities of military training and service. Specifically, we are called upon to decide whether conscientious scruples relating to a particular conflict are within the purview of established provisions[1] relieving conscientious objectors to war from military service. Both petitioners also invoke constitutional principles barring government interference with the exercise of religion and requiring governmental neutrality in matters of religion. In No. 85, petitioner Gillette was convicted of wilful failure to report for induction into the armed forces. Gillette defended on the ground that he should have been ruled exempt from induction as a conscientious objector to war. In support of his unsuccessful request for classification as a conscientious objector, this petitioner had stated his willingness to participate in a war of national defense or a war sponsored by the United Nations as a peace-keeping measure, but declared his opposition to American military operations in Vietnam, which he characterized as "unjust." Petitioner concluded that he could not in conscience enter and serve in the armed forces during the period of the Vietnam conflict. Gillette's view of his duty to abstain from any involvement in a war seen as unjust is, in his words, "based on a humanist approach to religion," and his personal decision concerning military service was guided by fundamental principles of conscience and deeply held views about the purpose and obligation of human existence. *440 The District Court determined that there was a basis in fact to support administrative denial of exemption in Gillette's case. The denial of exemption was upheld, and Gillette's defense to the criminal charge rejected, not because of doubt about the sincerity or the religious character of petitioner's objection to military service, but because his objection ran to a particular war. In affirming the conviction, the Court of Appeals concluded that Gillette's conscientious beliefs "were specifically directed against the war in Vietnam," while the relevant exemption provision of the Military Selective Service Act of 1967, 50 U.S. C. App. 456 (j) (1964 ed., Supp. V), "requires opposition `to participation in war in any form.' " In No. 325, petitioner Negre, after induction into the Army, completion of basic training, and receipt of orders for Vietnam duty, commenced proceedings looking to his discharge as a conscientious objector to war. Application for discharge was denied, and Negre sought judicial relief by habeas corpus. The District Court found a basis in fact for the Army's rejection of petitioner's application for discharge. Habeas relief was denied, and the denial was affirmed on appeal, because, in the language of the Court of Appeals, Negre "objects to the war in Vietnam, not to all wars," and therefore does "not qualify for separation [from the Army], as a conscientious objector."[2] Again, no question is raised as to the sincerity or the religious quality of this petitioner's views. In line with religious counselling and numerous religious texts, Negre, *441 a devout Catholic, believes that it is his duty as a faithful Catholic to discriminate between "just" and "unjust" wars, and to forswear participation in the latter. His assessment of the Vietnam conflict as an unjust war became clear in his mind after completion of infantry training, and Negre is now firmly of the view that any personal involvement in that war would contravene his conscience and "all that I had been taught in my religious training." We granted certiorari in these cases, in order to resolve vital issues concerning the exercise of congressional power to raise and support armies, as affected by the religious guarantees of the First Amendment. We affirm the judgments below in both cases. I Each petitioner claims a nonconstitutional right to be relieved of the duty of military service in virtue of his conscientious scruples.[3] Both claims turn on the proper construction of 6 (j) of the Military Selective Service Act of 1967, 50 U.S. C. App. 456 (j) (1964 ed., Supp. V), which provides: "Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form."[4] *442 This language controls Gillette's claim to exemption, which was asserted administratively prior to the point of induction. Department of Defense Directive No. 1300.6 prescribes that post-induction claims to conscientious objector status shall be honored, if valid, by the various branches of the armed forces.[5] Section 6 (j) of the Act, as construed by the courts, is incorporated by the various service regulations issued pursuant to the Directive,[6] and thus the standards for measuring claims of in-service objectors, such as Negre, are the same as the statutory tests applicable in a pre-induction situation. *443 For purposes of determining the statutory status of conscientious objection to a particular war, the focal language of 6 (j) is the phrase, "conscientiously opposed to participation in war in any form." This language, on a straightforward reading, can bear but one meaning; that conscientious scruples relating to war and military service must amount to conscientious opposition to participating personally in any war and all war. See ; See also United It matters little for present purposes whether the words, "in any form," are read to modify "war" or "participation." On the first reading, conscientious scruples must implicate "war in any form," and an objection involving a particular war rather than all war would plainly not be covered by 6 (j). On the other reading, an objector must oppose "participation in war." It would strain good sense to read this phrase otherwise than to mean "participation in all war." For the word "war" would still be used in an unqualified, generic sense, meaning war as such. Thus, however the statutory clause be parsed, it remains that conscientious objection must run to war in any form.[7] A different result cannot be supported by reliance on the materials of legislative history.[8] Petitioners and *444 amici point to no episode or pronouncement in the legislative history of 6 (j), or of predecessor provisions, that tends to overthrow the obvious interpretation of the words themselves.[9] *445 It is true that the legislative materials reveal a deep concern for the situation of conscientious objectors to war, who absent special status would be put to a hard choice between contravening imperatives of religion and conscience or suffering penalties. Moreover, there are clear indications that congressional reluctance to impose such a choice stems from a recognition of the value of conscientious action to the democratic community at large, and from respect for the general proposition that fundamental principles of conscience and religious duty may sometimes override the demands of the secular state. See United ; United See generally Selective Service System Monograph No. 11, Conscientious Objection (1950). But there are countervailing considerations, which are also the concern of Congress,[10] and the legislative materials simply do not support the view that Congress intended to recognize any conscientious claim whatever as a basis for relieving the claimant from the general responsibility or the various incidents of military service. The claim that is recognized by 6 (j) is a *446 claim of conscience running against war as such. This claim, not one involving opposition to a particular war only, was plainly the focus of congressional concern. Finding little comfort in the wording or the legislative history of 6 (j), petitioners rely heavily on dicta in the decisional law dealing with objectors whose conscientious scruples ran against war as such, but who indicated certain reservations of an abstract nature. It is instructive that none of the cases relied upon embraces an interpretation of 6 (j) at variance with the construction we adopt today.[11] presented the only previous occasion for this Court to focus on the "participation in war in any form" language of 6 (j). In Sicurella a Jehovah's Witness who opposed participation in secular wars was held to possess the requisite conscientious scruples concerning war, although he was not opposed to participation in a "theocratic war" commanded by Jehovah. The Court noted that the "theocratic war" reservation was highly abstract—no such war had occurred since biblical times, and none was contemplated. Congress, on the other hand, had in mind "real shooting wars," and Sicurella's abstract reservations did not undercut his conscientious opposition to participating in such wars. Plainly, Sicurella cannot be read to support the claims of those, like petitioners, *447 who for a variety of reasons consider one particular "real shooting war" to be unjust, and therefore oppose participation in that war.[12] It should be emphasized that our cases explicating the "religious training and belief" clause of 6 (j), or cognate clauses of predecessor provisions, are not relevant to the present issue. The question here is not whether these petitioners' beliefs concerning war are "religious" in nature. Thus, petitioners' reliance on United and is misplaced. Nor do we decide that conscientious objection to a particular war necessarily falls within 6 (j)'s expressly excluded class[13] of "essentially political, sociological, or philosophical views, or a merely personal moral code." Rather, we hold that Congress intended to exempt persons who oppose participating in all war—"participation in war in any form"— and that persons who object solely to participation in a particular war are not within the purview of the exempting section, even though the latter objection may have such roots in a claimant's conscience and personality that it is "religious" in character. A further word may be said to clarify our statutory holding. Apart from abstract theological reservations, two other sorts of reservations concerning use of force have been thought by lower courts not to defeat a conscientious *448 objector claim. Willingness to use force in self-defense, in defense of home and family, or in defense against immediate acts of aggressive violence toward other persons in the community, has not been regarded as inconsistent with a claim of conscientious objection to war as such. See, e. g., United ; United But surely willingness to use force defensively in the personal situations mentioned is quite different from willingness to fight in some wars but not in others. Cf. Somewhat more apposite to the instant situation are cases dealing with persons who oppose participating in all wars, but cannot say with complete certainty that their present convictions and existing state of mind are unalterable. See, e. g., United v. Owen, Unwillingness to deny the possibility of a change of mind, in some hypothetical future circumstances, may be no more than humble good sense, casting no doubt on the claimant's present sincerity of belief. At any rate there is an obvious difference between present sincere objection to all war, and present opposition to participation in a particular conflict only. II Both petitioners argue that 6 (j), construed to cover only objectors to all war, violates the religious clauses of the First Amendment. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Petitioners contend that Congress interferes with free exercise of religion by failing to relieve objectors to a particular war from military service, when the objection is religious or conscientious in nature. While the two religious clauses—pertaining to "free exercise" and *449 "establishment" of religion—overlap and interact in many ways, see Abington School ; Freund, Public Aid To Parochial Schools, it is best to focus first on petitioners' other contention, that 6 (j) is a law respecting the establishment of religion. For despite free exercise overtones, the gist of the constitutional complaint is that 6 (j) impermissibly discriminates among types of religious belief and affiliation.[14] On the assumption that these petitioners' beliefs concerning war have roots that are "religious" in nature, within the meaning of the Amendment as well as this Court's decisions construing 6 (j), petitioners ask how their claims to relief from military service can be permitted to fail, while other "religious" claims are upheld by the Act. It is a fact that 6 (j), properly construed, has this effect. Yet we cannot conclude in mechanical fashion, or at all, that the section works an establishment of religion. An attack founded on disparate treatment of "religious" claims invokes what is perhaps the central purpose of the Establishment Clause—the purpose of ensuring governmental neutrality in matters of religion. See ; Here *450 there is no claim that exempting conscientious objectors to war amounts to an overreaching of secular purposes and an undue involvement of government in affairs of religion. Cf. ; To the contrary, petitioners ask for greater "entanglement" by judicial expansion of the exemption to cover objectors to particular wars. Necessarily the constitutional value at issue is "neutrality." And as a general matter it is surely true that the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization. See ; The metaphor of a "wall" or impassable barrier between Church and State, taken too literally, may mislead constitutional analysis, see ; but the Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact. Abington School ; ; A The critical weakness of petitioners' establishment claim arises from the fact that 6 (j), on its face, simply does not discriminate on the basis of religious affiliation or religious belief, apart of course from beliefs concerning war. The section says that anyone who is conscientiously opposed to all war shall be relieved of military service. The specified objection must have a grounding in "religious training and belief," but no particular *451 sectarian affiliation or theological position is required. The Draft Act of 1917, 4, extended relief only to those conscientious objectors affiliated with some "well-recognized religious sect or organization" whose principles forbade members' participation in war, but the attempt to focus on particular sects apparently broke down in administrative practice, n. 19 and the 1940 Selective Training and Service Act, 5 (g), discarded all sectarian restriction.[15] Thereafter Congress has framed the conscientious objector exemption in broad terms compatible with "its long-established policy of not picking and choosing among religious beliefs." United Thus, there is no occasion to consider the claim that when Congress grants a benefit expressly to adherents of one religion, courts must either nullify the grant or somehow extend the benefit to cover all religions. For 6 (j) does not single out any religious organization or religious creed for special treatment. Rather petitioners' contention is that since Congress has recognized one sort of conscientious objection concerning war, whatever its religious basis, the Establishment Clause commands that another, different objection be carved out and protected by the courts.[16] Properly phrased, petitioners' contention is that the special statutory status accorded conscientious objection to all war, but not objection to a particular war, works *452 a de facto discrimination among religions. This happens, say petitioners, because some religious faiths themselves distinguish between personal participation in "just" and in "unjust" wars, commending the former and forbidding the latter, and therefore adherents of some religious faiths—and individuals whose personal beliefs of a religious nature include the distinction—cannot object to all wars consistently with what is regarded as the true imperative of conscience. Of course, this contention of de facto religious discrimination, rendering 6 (j) fatally underinclusive, cannot simply be brushed aside. The question of governmental neutrality is not concluded by the observation that 6 (j) on its face makes no discrimination between religions, for the Establishment Clause forbids subtle departures from neutrality, "religious gerrymanders," as well as obvious abuses. See also ; Illinois ex rel. Still a claimant alleging "gerrymander" must be able to show the absence of a neutral, secular basis for the lines government has drawn. See -109; Board of ; ; For the reasons that follow, we believe that petitioners have failed to make the requisite showing with respect to 6 (j). Section 6 (j) serves a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions.[17] There are considerations *453 of a pragmatic nature, such as the hopelessness of converting a sincere conscientious objector into an effective fighting man, but no doubt the section reflects as well the view that "in the forum of conscience, duty to a moral power higher than the State has always been maintained." United See United 380 U. S., at We have noted that the legislative materials show congressional concern for the hard choice that conscription would impose on conscientious objectors to war, as well as respect for the value of conscientious action and for the principle of supremacy of conscience.[18] Naturally the considerations just mentioned are affirmative in character, going to support the existence of an exemption rather than its restriction specifically to persons who object to all war. The point is that these affirmative purposes are neutral in the sense of the Establishment Clause. Quite apart from the question whether the Free Exercise Clause might require some sort of exemption,[19] it is hardly impermissible for Congress to attempt to accommodate free exercise values, in line with "our happy tradition" of "avoiding unnecessary clashes with the dictates of conscience." United See Abington School -9 ; ; *454 See also -373 "Neutrality" in matters of religion is not inconsistent with "benevolence" by way of exemptions from onerous duties, so long as an exemption is tailored broadly enough that it reflects valid secular purposes. In the draft area for 30 years the exempting provision has focused on individual conscientious belief, not on sectarian affiliation. The relevant individual belief is simply objection to all war, not adherence to any extraneous theological viewpoint. And while the objection must have roots in conscience and personality that are "religious" in nature, this requirement has never been construed to elevate conventional piety or religiosity of any kind above the imperatives of a personal faith. In this state of affairs it is impossible to say that 6 (j) intrudes upon "voluntarism" in religious life, see or that the congressional purpose in enacting 6 (j) is to promote or foster those religious organizations that traditionally have taught the duty to abstain from participation in any war. A claimant, seeking judicial protection for his own conscientious beliefs, would be hard put to argue that 6 (j) encourages membership in putatively "favored" religious organizations, for the painful dilemma of the sincere conscientious objector arises precisely because he feels himself bound in conscience not to compromise his beliefs or affiliations. B We conclude not only that the affirmative purposes underlying 6 (j) are neutral and secular, but also that valid neutral reasons exist for limiting the exemption to objectors to all war, and that the section therefore cannot be said to reflect a religious preference. *455 Apart from the Government's need for manpower, perhaps the central interest involved in the administration of conscription laws is the interest in maintaining a fair system for determining "who serves when not all serve."[] When the Government exacts so much, the importance of fair, evenhanded, and uniform decisionmaking is obviously intensified. The Government argues that the interest in fairness would be jeopardized by expansion of 6 (j) to include conscientious objection to a particular war. The contention is that the claim to relief on account of such objection is intrinsically a claim of uncertain dimensions, and that granting the claim in theory would involve a real danger of erratic or even discriminatory decisionmaking in administrative practice. A virtually limitless variety of beliefs are subsumable under the rubric, "objection to a particular war."[21] All the factors that might go into nonconscientious dissent from policy, also might appear as the concrete basis of an objection that has roots as well in conscience and religion. Indeed, over the realm of possible situations, opposition to a particular war may more likely be political and nonconscientious, than otherwise. See United 133 F. 2d, at 708. The difficulties of sorting *456 the two, with a sure hand, are considerable. Moreover, the belief that a particular war at a particular time is unjust is by its nature changeable and subject to nullification by changing events. Since objection may fasten on any of an enormous number of variables, the claim is ultimately subjective, depending on the claimant's view of the facts in relation to his judgment that a given factor or congeries of factors colors the character of the war as a whole. In short, it is not at all obvious in theory what sorts of objections should be deemed sufficient to excuse an objector, and there is considerable force in the Government's contention that a program of excusing objectors to particular wars may be "impossible to conduct with any hope of reaching fair and consistent results" Brief 28. For their part, petitioners make no attempt to provide a careful definition of the claim to exemption that they ask the courts to carve out and protect. They do not explain why objection to a particular conflict—much less an objection that focuses on a particular facet of a conflict —should excuse the objector from all military service whatever, even from military operations that are connected with the conflict at hand in remote or tenuous ways.[22] They suggest no solution to the problems arising from the fact that altered circumstances may quickly render the objection to military service moot. To view the problem of fairness and evenhanded decisionmaking, in the present context, as merely a commonplace chore of weeding out "spurious claims," is to minimize substantial difficulties of real concern to a responsible legislative body. For example, under the petitioners' unarticulated scheme for exemption, an objector's claim to exemption might be based on some feature of a current conflict that most would regard as incidental, *457 or might be predicated on a view of the facts that most would regard as mistaken. The particular complaint about the war may itself be "sincere," but it is difficult to know how to judge the "sincerity" of the objector's conclusion that the war in toto is unjust and that any personal involvement would contravene conscience and religion. To be sure we have ruled, in connection with 6 (j), that "the `truth' of a belief is not open to question"; rather, the question is whether the objector's beliefs are "truly held." United See also United v. Ballard, But we must also recognize that "sincerity" is a concept that can bear only so much adjudicative weight. Ours is a Nation of enormous heterogeneity in respect of political views, moral codes, and religious persuasions. It does not bespeak an establishing of religion for Congress to forgo the enterprise of distinguishing those whose dissent has some conscientious basis from those who simply dissent. There is a danger that as between two would-be objectors, both having the same complaint against a war, that objector would succeed who is more articulate, better educated, or better counseled. There is even a danger of unintended religious discrimination— a danger that a claim's chances of success would be greater the more familiar or salient the claim's connection with conventional religiosity could be made to appear. At any rate, it is true that "the more discriminating and complicated the basis of classification for an exemption—even a neutral one—the greater the potential for state involvement" in determining the character of persons' beliefs and affiliations, thus "entangl[ing] government in difficult classifications of what is or is not religious," or what is or is not conscientious. -699 Cf. Presbyterian While the danger of erratic decisionmaking unfortunately exists in any system of conscription that takes individual differences into account, no doubt the dangers would be enhanced if a conscientious objection of indeterminate scope were honored in theory. In addition to the interest in fairness, the Government contends that neutral, secular reasons for the line drawn by 6 (j)—between objection to all war and objection to a particular war—may be found in the nature of the conscientious claim that these petitioners assert. Opposition to a particular war, states the Government's brief, necessarily involves a judgment "that is political and particular," one "based on the same political, sociological and economic factors that the government necessarily considered" in deciding to engage in a particular conflict. Brief 24-26. Taken in a narrow sense, these considerations do not justify the distinction at issue, for however "political and particular" the judgment underlying objection to a particular war, the objection still might be rooted in religion and conscience, and although the factors underlying that objection were considered and rejected in the process of democratic decisionmaking, likewise the viewpoint of an objector to all war was no doubt considered and "necessarily" rejected as well. Nonetheless, it can be seen on a closer view that this line of analysis, conjoined with concern for fairness, does support the statutory distinction. Tacit at least in the Government's view of the instant cases is the contention that the limits of 6 (j) serve an overriding interest in protecting the integrity of democratic decisionmaking against claims to individual noncompliance. Despite emphasis on claims that have a "political and particular" component, the logic of the *459 contention is sweeping. Thus the "interest" invoked is highly problematical, for it would seem to justify governmental refusal to accord any breathing space whatever to noncompliant conduct inspired by imperatives of religion and conscience. On the other hand, some have perceived a danger that exempting persons who dissent from a particular war, albeit on grounds of conscience and religion in part, would "open the doors to a general theory of selective disobedience to law" and jeopardize the binding quality of democratic decisions. Report of the National Advisory on Selective Service, In Pursuit of Equity: Who Serves When Not All Serve? 50 (1967). See also Other fields of legal obligation aside, it is undoubted that the nature of conscription, much less war itself, requires the personal desires and perhaps the dissenting views of those who must serve to be subordinated in some degree to the pursuit of public purposes. It is also true that opposition to a particular war does depend inter alia upon particularistic factual beliefs and policy assessments, beliefs and assessments that presumably were overridden by the government that decides to commit lives and resources to a trial of arms. Further, it is not unreasonable to suppose that some persons who are not prepared to assert a conscientious objection, and instead accept the hardships and risks of military service, may well agree at all points with the objector, yet conclude, as a matter of conscience, that they are personally bound by the decision of the democratic process. The fear of the National Advisory on Selective Service, apparently, is that exemption of objectors to particular wars would weaken the resolve of those who otherwise would feel themselves bound to serve despite personal cost, uneasiness at the *460 prospect of violence, or even serious moral reservations or policy objections concerning the particular conflict. We need not and do not adopt the view that a categorical, global "interest" in stifling individualistic claims to noncompliance, in respect of duties generally exacted, is the neutral and secular basis of 6 (j). As is shown by the long history of the very provision under discussion, it is not inconsistent with orderly democratic government for individuals to be exempted by law, on account of special characteristics, from general duties of a burdensome nature. But real dangers—dangers of the kind feared by the —might arise if an exemption were made available that in its nature could not be administered fairly and uniformly over the run of relevant fact situations. Should it be thought that those who go to war are chosen unfairly or capriciously, then a mood of bitterness and cynicism might corrode the spirit of public service and the values of willing performance of a citizen's duties that are the very heart of free government. In short, the considerations mentioned in the previous paragraph, when seen in conjunction with the central problem of fairness, are without question properly cognizable by Congress. In light of these valid concerns, we conclude that it is supportable for Congress to have decided that the objector to all war—to all killing in war—has a claim that is distinct enough and intense enough to justify special status, while the objector to a particular war does not. Of course, we do not suggest that Congress would have acted irrationally or unreasonably had it decided to exempt those who object to particular wars. Our analysis of the policies of 6 (j) is undertaken in order to determine the existence vel non of a neutral, secular justification for the lines Congress has drawn. We find that justifying reasons exist and therefore hold that the Establishment Clause is not violated. *461 III Petitioner's remaining contention is that Congress interferes with the free exercise of religion by conscripting persons who oppose a particular war on grounds of conscience and religion. Strictly viewed, this complaint does not implicate problems of comparative treatment of different sorts of objectors, but rather may be examined in some isolation from the circumstance that Congress has chosen to exempt those who conscientiously object to all war.[23] And our holding that 6 (j) comports with the Establishment Clause does not automatically settle the present issue. For despite a general harmony of purpose between the two religious clauses of the First Amendment, the Free Exercise Clause no doubt has a reach of its own. Abington School 374 U. S., at Nonetheless, our analysis of 6 (j) for Establishment Clause purposes has revealed governmental interests of a kind and weight sufficient to justify under the Free Exercise Clause the impact of the conscription laws on those who object to particular wars. Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government. See ; ; cf. Cleveland v. United 3 U.S. 14, To be sure, the Free Exercise Clause bars "governmental regulation of religious beliefs as such," or interference with the dissemination of religious ideas. See ; ; It prohibits misuse of secular governmental programs "to impede the observance of one or all religions or to discriminate invidiously between religions, even though the burden may be characterized as being only indirect." 366 U. S., at And even as to neutral prohibitory or regulatory laws having secular aims, the Free Exercise Clause may condemn certain applications clashing with imperatives of religion and conscience, when the burden on First Amendment values is not justifiable in terms of the Government's valid aims. See id.; See generally Clark, Guidelines for the Free Exercise Clause, However, the impact of conscription on objectors to particular wars is far from unjustified. The conscription laws, applied to such persons as to others, are not designed to interfere with any religious ritual or practice, and do not work a penalty against any theological position. The incidental burdens felt by persons in petitioners' position are strictly justified by substantial governmental interests that relate directly to the very impacts questioned. And more broadly, of course, there is the Government's interest in procuring the manpower necessary for military purposes, pursuant to the constitutional grant of power to Congress to raise and support armies. Art. I, 8. *463 IV Since petitioners' statutory and constitutional claims to relief from military service are without merit, it follows that in Gillette's case (No. 85) there was a basis in fact to support administrative denial of exemption, and that in Negre's case (No. 325) there was a basis in fact to support the Army's denial of a discharge. Accordingly, the judgments below are Affirmed. MR. JUSTICE BLACK concurs in the Court's judgment and in Part I of the opinion of the Court. MR. JUSTICE DOUGLAS, dissenting in No. 85.[*] Gillette's objection is to combat service in the Vietnam war, not to wars in general, and the basis of his objection is his conscience. His objection does not put him into the statutory exemption which extends to one "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form."[1] He stated his views as follows: "I object to any assignment in the United Armed Forces while this unnecessary and unjust war is being waged, on the grounds of religious belief specifically `Humanism.' This essentially means respect and love for man, faith in his inherent goodness and perfectability, and confidence in his capability to improve some of the pains of the human condition." This position is substantially the same as that of Sisson in United v. Sisson, 7 F. Supp. 902, appeal *464 dismissed, where the District Court summarized the draftee's position as follows: "Sisson's table of ultimate values is moral and ethical. It reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion. It is just as much a residue of culture, early training, and beliefs shared by companions and family. What another derives from the discipline of a church, Sisson derives from the discipline of conscience." 7 F. Supp., at 905. There is no doubt that the views of Gillette are sincere, genuine, and profound. The District Court in the present case faced squarely the issue presented in Sisson and being unable to distinguish the case on the facts, refused to follow Sisson. The question, Can a conscientious objector, whether his objection be rooted in "religion" or in moral values, be required to kill? has never been answered by the Court.[2], did no more than hold that the Fourteenth Amendment did not require a State to make its university available to one who would not take military training. United denied naturalization to a person who "would not promise in advance to bear arms in defense of the United unless he believed the war to be morally justified." The question of compelling a man to kill against his conscience was not squarely involved. Most of the talk in the majority opinion concerned "serving in the armed forces of the *465 Nation in time of war." Such service can, of course, take place in noncombatant roles. The ruling was that such service is "dependent upon the will of Congress and not upon the scruples of the individual, except as Congress provides." The dicta of the Court in the case squint towards the denial of Gillette's claim, though as I have said, the issue was not squarely presented. Yet if dicta are to be our guide, my choice is the dicta of Chief Justice Hughes who, dissenting in spoke as well for Justices Holmes, Brandeis, and Stone: "Nor is there ground, in my opinion, for the exclusion of Professor because his conscientious scruples have particular reference to wars believed to be unjust. There is nothing new in such an attitude. Among the most eminent statesmen here and abroad have been those who condemned the action of their country in entering into wars they thought to be unjustified. Agreements for the renunciation of war presuppose a preponderant public sentiment against wars of aggression. If, while recognizing the power of Congress, the mere holding of religious or conscientious scruples against all wars should not disqualify a citizen from holding office in this country, or an applicant otherwise qualified from being admitted to citizenship, there would seem to be no reason why a reservation of religious or conscientious objection to participation in wars believed to be unjust should constitute such a disqualification." I think the Hughes view is the constitutional view. It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the *466 bedrock of free speech as well as religion. The implied First Amendment right of "conscience" is certainly as high as the "right of association" which we recognized in and Some indeed have thought it higher.[3] Conscience is often the echo of religious faith. But, as this case illustrates, it may also be the product of travail, meditation, or sudden revelation related to a moral comprehension of the dimensions of a problem, not to a religion in the ordinary sense. Tolstoy[4] wrote of a man, one Van der Veer, "who, as he himself says, is not a Christian, and who refuses military service, not from religious motives, but from motives of the simplest kind, motives intelligible and common to all men, of whatever religion or nation, whether Catholic, Mohammedan, Buddhist, Confucian, whether Spaniards or Japanese. "Van der Veer refuses military service, not because he follows the commandment. `Thou shalt do no murder,' not because he is a Christian, but because he holds murder to be opposed to human nature." *467 Tolstoy[5] goes on to say: "Van der Veer says he is not a Christian. But the motives of his refusal and action are Christian. He refuses because he does not wish to kill a brother man; he does not obey, because the commands of his conscience are more binding upon him than the commands of men. Thereby he shows that Christianity is not a sect or creed which some may profess and others reject; but that it is naught else than a life's following of that light of reason which illumines all men. "Those men who now behave rightly and reasonably do so, not because they follow prescriptions of Christ, but because that line of action which was pointed out eighteen hundred years ago has now become identified with human conscience." The "sphere of intellect and spirit," as we described the domain of the First Amendment in West Virginia Board of was recognized in United where we gave a broad construction to the statutory exemption of those who by their religious training or belief are conscientiously opposed to participation in war in any form. We said: "A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by *468 the God of those admittedly qualifying for the exemption comes within the statutory definition."[6] does not answer the present question as Gillette is not "opposed to participation in war in any form." But the constitutional infirmity in the present Act seems obvious once "conscience" is the guide. As Chief Justice Hughes said in the case: "But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." 283 U.S., at -634. The law as written is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples. MR. JUSTICE BLACK once said: "The First Amendment has lost much if the religious follower and the atheist[7] are no longer to be *469 judicially regarded as entitled to equal justice under law." 3 (dissenting). We said as much in our recent decision in where we struck down as unconstitutional a state law prohibiting the teaching of the doctrine of evolution in the public schools: "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." at While there is no Equal Protection Clause in the Fifth Amendment, our decisions are clear that invidious classifications violate due process. held that segregation by race in the public schools was an invidious discrimination, and reached the same result based on penalties imposed on naturalized, not nativeborn, citizens. A classification of "conscience" based on a "religion" and a "conscience" based on more generalized, philosophical grounds is equally invidious by reason of our First Amendment standards. I had assumed that the welfare of the single human soul was the ultimate test of the vitality of the First Amendment. This is an appropriate occasion to give content to our dictum in Board of at : "[F]reedom to differ is not limited to things that do not matter much. The test of its substance *470 is the right to differ as to things that touch the heart of the existing order." I would reverse this judgment. MR. JUSTICE DOUGLAS, dissenting in No. 325, Negre v. Larsen. I approach the facts of this case with some diffidence, as they involve doctrines of the Catholic Church in which I was not raised. But we have on one of petitioner's briefs an authoritative lay Catholic scholar, Dr. John T. Noonan, Jr., and from that brief I deduce the following: Under the doctrines of the Catholic Church a person has a moral duty to take part in wars declared by his government so long as they comply with the tests of his church for just wars.[1] Conversely, a Catholic has a moral duty not to participate in unjust wars.[2] *471 The Fifth Commandment, "Thou shall not kill," provides a basis for the distinction between just and unjust wars. In the 16th century Francisco Victoria, Dominican master of the University of Salamanca and pioneer in international law, elaborated on the distinction. "If a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his prince. This is clear, for no one can authorize the killing of an innocent person." He realized not all men had the information of the prince and his counsellors on the causes of a war, but where "the proofs and tokens of the injustice of the war may be such that ignorance would be no excuse even to the subjects" who are not normally informed, that ignorance will not be an excuse if they participate.[3] Well over 400 years later, today, the Baltimore Catechism makes an exception to the Fifth Commandment for a "soldier fighting a just war."[4] No one can tell a Catholic that this or that war is either just or unjust. This is a personal decision that an individual must make on the basis of his own conscience after studying the facts.[5] *472 Like the distinction between just and unjust wars, the duty to obey conscience is not a new doctrine in the Catholic Church. When told to stop preaching by the Sanhedrin, to which they were subordinate by law, "Peter and the apostles answered and said, `We must obey God rather than men.' "[6] That duty has not changed. Pope Paul VI has expressed it as follows: "On his part, man perceives and acknowledges the imperatives of the divine law through the mediation of conscience. In all his activity a man is bound to follow his conscience, in order that he may come to God, the end and purpose of life."[7] While the fact that the ultimate determination of whether a war is unjust rests on individual conscience, the Church has provided guides. Francisco Victoria referred to "killing of an innocent person." World War II had its impact on the doctrine. Writing shortly after the war Cardinal Ottaviani stated: "[M]odern wars can *473 never fulfil those conditions which (as we stated earlier on in this essay) govern—theoretically—a just and lawful war. Moreover, no conceivable cause could ever be sufficient justification for the evils, the slaughter, the destruction, the moral and religious upheavals which war today entails. In practice, then, a declaration of war will never be justifiable."[8] The full impact of the horrors of modern war were emphasized in the Pastoral Constitution announced by Vatican II: "The development of armaments by modern science has immeasurably magnified the horrors and wickedness of war. Warfare conducted with these weapons can inflict immense and indiscriminate havoc which goes far beyond the bounds of legitimate defense. Indeed, if the kind of weapons now stocked in the arsenals of the great powers were to be employed to the fullest, the result would be the almost complete reciprocal slaughter of one side by the other, not to speak of the widespread devastation that would follow in the world and the deadly after-effects resulting from the use of such arms. "All these factors force us to undertake a completely fresh reappraisal of war." "[I]t is one thing to wage a war of self-defense; it is quite another to seek to impose domination on another nation." The Pastoral Constitution announced that "[e]very act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man which merits firm and unequivocal condemnation."[9] Louis Negre is a devout Catholic. In 1951 when he was four, his family immigrated to this country from *474 France.[10] He attended Catholic schools in Bakersfield, California, until graduation from high school. Then he attended Bakersfield Junior College for two years. Following that, he was inducted into the Army. At the time of his induction he had his own convictions about the Vietnam war and the Army's goals in the war. He wanted, however, to be sure of his convictions. "I agreed to myself that before making any decision or taking any type of stand on the issue, I would permit myself to see and understand the Army's explanation of its reasons for violence in Vietnam. For, without getting an insight on the subject, it would be unfair for me to say anything, without really knowing the answer."[11] On completion of his advanced infantry training, "I knew that if I would permit myself to go to Vietnam I would be violating my own concepts of natural law and would be going against all that I had been taught in my religious training." Negre applied for a discharge as a conscientious objector. His application was denied. He then refused to comply with an order to proceed for shipment to Vietnam. A general court-martial followed, but he was acquitted. After that he filed this application for discharge as a conscientious objector. *475 Negre is opposed under his religious training and beliefs to participation in any form in the war in Vietnam. His sincerity is not questioned. His application for a discharge, however, was denied because his religious training and beliefs led him to oppose only a particular war[12] which according to his conscience was unjust. For the reasons I have stated in my dissent in the Gillette case decided this day, I would reverse the judgment.

Justice Burger

majority

Brown v. United States

https://www.courtlistener.com/opinion/108760/brown-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108760/

1972-092

Petitioners were convicted by a jury of transporting stolen goods and of conspiracy to transport stolen goods in interstate commerce, contrary to 18 U.S. C. § 2314 and 18 U.S. C. § 371. The central issue now is whether petitioners have standing to challenge the lawfulness of the seizure of merchandise stolen by them but stored in the premises of one Knuckles, a coconspirator. At the time of the seizure from Knuckles, petitioners were in police custody in a different State. Knuckles successfully challenged the introduction of the stolen goods seized from his store under a faulty warrant, and his case was separately tried. The evidence against petitioners is largely uncontroverted. Petitioner Brown was the manager of a warehouse in Cincinnati, Ohio, owned by a wholesale clothing and household goods company. He was entrusted with the warehouse keys. Petitioner Smith was a truck driver for the company. During 1968 and 1969, the company had experienced losses attributed to pilferage amounting to approximately $60,000 each year. One West, a buyer and supervisor for the company, recovered a slip of paper he had seen drop from Brown's pocket. On the slip, in Brown's handwriting, was a list of warehouse merchandise, together with a price on each item that was well below wholesale cost. West estimated that the lowest legitimate wholesale price for these items would have been a total of about $6,400, while the total as priced by Brown's list was $2,200. The police were *225 promptly notified and set up a surveillance of the warehouse. Ten days later, petitioners were observed wheeling carts containing boxes of merchandise from the warehouse to a truck. From a concealed point, the police took 20 photographs of petitioners loading the merchandise onto the truck. Petitioners then locked the warehouse, and drove off. They were followed and stopped by the police, placed under arrest, advised of their constitutional rights, and, with the loaded truck, taken into custody to police headquarters. The goods in the truck had not been lawfully taken from the warehouse and had a total value of about $6,500. Following their arrest, and after being fully informed of their constitutional rights, both petitioners made separate confessions to police indicating that they had conspired with Knuckles to steal from the warehouse, that they had stolen goods from the warehouse in the past, and that they had taken these goods, on two occasions about two months before their arrest, to Knuckles' store in Manchester, Kentucky. Petitioners also indicated that they had "sold" the previously stolen goods on delivery to Knuckles for various amounts of cash. Knuckles' store was then searched pursuant to a warrant, and goods stolen from the company, worth over $100,000 in retail value, were discovered. Knuckles was at the store during the search, but petitioners were in custody in Ohio. Prior to trial, petitioners and Knuckles[1] moved to suppress the stolen merchandise found at Knuckles' store. The prosecution conceded that the warrant for the search of Knuckles' store was defective. The District Court held a hearing on petitioners' motion to suppress the evidence. Petitioners, however, alleged no proprietary or possessory interest in Knuckles' premises or in *226 the goods seized there, nor was any evidence of such an interest presented to the District Court. After the hearing, the District Court granted Knuckles' motion to suppress the goods seized, but denied petitioners' motion for lack of standing. The charges against Knuckles were severed for separate trial. At petitioners' trial, stolen merchandise seized from Knuckles' store was received in evidence. The events leading to petitioners' arrests upon leaving the warehouse and while they were in possession of stolen goods were fully described by police officers who were eyewitnesses. The 20 photographs taken of the crime in progress were admitted into evidence. There was additional incriminating testimony by the owner of the service station from whom petitioners rented trucks used in the thefts, and by five witnesses who saw petitioners unloading boxes from a truck late at night and carrying the boxes into Knuckles' store. The prosecutor also introduced into evidence, over petitioners' objections, portions of each petitioner's confession which implicated the other in a manner now conceded to be contrary to Bruton v. United States, 391 U.S. 123 (1968). Those considerable parts of each petitioner's confession which did not implicate the other were admitted without objection. The jury returned verdicts of guilty on all counts. On appeal, the Court of Appeals for the Sixth Circuit recognized that a Bruton error had occurred, but went on to conclude that the independent proof of petitioners' guilt was "so overwhelming that the error was harmless," citing Harrington v. California, 395 U.S. 250 (1969). The Court of Appeals also held that the stolen merchandise seized pursuant to the defective warrant was properly admitted against petitioners, stating: "This ruling [of the District Court] was correct because appellants claimed no possessory or proprietary *227 rights in the goods or in Knuckles' store, and it is clear that they cannot assert the Fourth Amendment right of another." 452 F.2d 868, 870 (1971). (1) Petitioners contend that they have "automatic" standing to challenge the search and seizure at Knuckles' store. They rely on the decision of this Court in Jones v. United States, 362 U.S. 257 (1960), establishing a rule of "automatic" standing to contest an allegedly illegal search where the same possession needed to establish standing is "an essential element of the offense . . . charged." Simmons v. United States, 390 U.S. 377, 390 (1968). That case involved (a) a seizure of contraband narcotics, (b) a defendant who was present at the seizure,[2] and (c) an offense in which the defendant's possession of the seized narcotics at the time of the contested search and seizure was a critical part of the Government's case. Jones, supra, at 263. Mr. Justice Frankfurter, writing for the Court in Jones, emphasized the "dilemma" inherent in a defendant's need to allege "possession" to contest a seizure, when such admission of possession could later be used against him. Id., at 262-264. Mr. Justice Frankfurter quoted the words of Judge Learned Hand: "Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they *228 must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma." Connolly v. Medalie, 58 F.2d 629, 630 (CA2 1932). The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, supra, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. 390 U.S., at 389-394. For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming "possession" of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, at the pretrial suppression hearing, a possessory interest in the goods at Knuckles' store without any danger of incriminating themselves. They did not do so. But it is not necessary for us now to determine whether our decision in Simmons, supra, makes Jones' "automatic" standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is "an essential element of the offense . . . charged." Simmons, 390 U. S., at 390. Here, unlike Jones, the Government's case against petitioners does not depend on petitioners' possession of the seized evidence at the time of the contested search and seizure.[3]*229 The stolen goods seized had been transported and "sold" by petitioners to Knuckles approximately two months before the challenged search. The conspiracy and transportation alleged by the indictment were carefully limited to the period before the day of the search. In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking "advantage of contradictory positions." Jones v. United States, supra, at 263. See United States v. Allsenberrie, 424 F.2d 1209, 1212-1214 (CA7 1970); United States v. Cowan, 396 F.2d 83, 86 (CA2 1968); Niro v. United States, 388 F.2d 535, 537 (CA1 1968); United States v. Bozza, 365 F.2d 206, 223 (CA2 1966). But cf. United States v. Price, 447 F.2d 23, 29 (CA2), cert. denied, 404 U.S. 912 (1971). Again, we do not decide that this vice of prosecutorial self-contradiction warrants the continued survival of Jones' "automatic" standing now that our decision in Simmons has removed the danger of coerced self-incrimination. We simply see no reason to afford such "automatic" standing where, as here, there was no risk to a defendant of either self-incrimination or prosecutorial self-contradiction. Petitioners were afforded a full hearing on standing and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized. *230 Nor, incidentally, does the record reveal any such interest.[4] As the Court of Appeals correctly concluded, petitioners had no standing to contest the defective warrant used to search Knuckles' store; they could not then and cannot now rely on the Fourth Amendment rights of another. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Simmons v. United States, 390 U.S. 377 (1968); Jones v. United States, 362 U.S. 257 (1960)." Alderman v. United States, 394 U.S. 165, 174 (1969). See Wong Sun v. United States, 371 U.S. 471, 492 (1963). (2) The Solicitor General concedes that, under Bruton, supra, statements made by petitioners were improperly admitted into evidence. Neither petitioner testified at the trial. The prosecution tendered police testimony as to statements made by Smith implicating Brown in the crimes charged, even though these statements were made out of Brown's presence.[5] This testimony was *231 admitted into evidence. Similar statements, made by Brown relating to Smith, were also admitted. Petitioners' counsel made timely objections. Upon an independent examination of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. In this case, as in Harrington v. California, 395 U.S. 250 (1969), the independent evidence "is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this . . . conviction undisturbed," id., at 254. We reject the notion that a Bruton error can never be harmless. "[A] defendant is entitled to a fair trial but not a perfect one," *232 for there are no perfect trials. Bruton v. United States, 391 U. S., at 135, quoting Lutwak v. United States, 344 U.S. 604, 619 (1953). See Schneble v. Florida, 405 U.S. 427, 432 (1972); Chapman v. California, 386 U.S. 18, 23-24 (1967). Affirmed.

Petitioners were convicted by a jury of transporting stolen goods and of conspiracy to transport stolen goods in interstate commerce, contrary to 18 U.S. C. 2314 and 18 U.S. C. 371. The central issue now is whether petitioners have standing to challenge the lawfulness of the seizure of merchandise stolen by them but stored in the premises of one Knuckles, a coconspirator. At the time of the seizure from Knuckles, petitioners were in police custody in a different State. Knuckles successfully challenged the introduction of the stolen goods seized from his store under a faulty warrant, and his case was separately tried. The evidence against petitioners is largely uncontroverted. Petitioner Brown was the manager of a warehouse in Cincinnati, Ohio, owned by a wholesale clothing and household goods company. He was entrusted with the warehouse keys. Petitioner Smith was a truck driver for the company. During and 1969, the company had experienced losses attributed to pilferage amounting to approximately $60,000 each year. One West, a buyer and supervisor for the company, recovered a slip of paper he had seen drop from Brown's pocket. On the slip, in Brown's handwriting, was a list of warehouse merchandise, together with a price on each item that was well below wholesale cost. West estimated that the lowest legitimate wholesale price for these items would have been a total of about $6,400, while the total as priced by Brown's list was $2,200. The police were *225 promptly notified and set up a surveillance of the warehouse. Ten days later, petitioners were observed wheeling carts containing boxes of merchandise from the warehouse to a truck. From a concealed point, the police took 20 photographs of petitioners loading the merchandise onto the truck. Petitioners then locked the warehouse, and drove off. They were followed and stopped by the police, placed under arrest, advised of their constitutional rights, and, with the loaded truck, taken into custody to police headquarters. The goods in the truck had not been lawfully taken from the warehouse and had a total value of about $6,500. Following their arrest, and after being fully informed of their constitutional rights, both petitioners made separate confessions to police indicating that they had conspired with Knuckles to steal from the warehouse, that they had stolen goods from the warehouse in the past, and that they had taken these goods, on two occasions about two months before their arrest, to Knuckles' store in Manchester, Kentucky. Petitioners also indicated that they had "sold" the previously stolen goods on delivery to Knuckles for various amounts of cash. Knuckles' store was then searched pursuant to a warrant, and goods stolen from the company, worth over $100,000 in retail value, were discovered. Knuckles was at the store during the search, but petitioners were in custody in Ohio. Prior to trial, petitioners and Knuckles[1] moved to suppress the stolen merchandise found at Knuckles' store. The prosecution conceded that the warrant for the search of Knuckles' store was defective. The District Court held a hearing on petitioners' motion to suppress the Petitioners, however, alleged no proprietary or possessory interest in Knuckles' premises or in *226 the goods seized there, nor was any evidence of such an interest presented to the District Court. After the hearing, the District Court granted Knuckles' motion to suppress the goods seized, but denied petitioners' motion for lack of standing. The charges against Knuckles were severed for separate trial. At petitioners' trial, stolen merchandise seized from Knuckles' store was received in The events leading to petitioners' arrests upon leaving the warehouse and while they were in possession of stolen goods were fully described by police officers who were eyewitnesses. The 20 photographs taken of the crime in progress were admitted into There was additional incriminating testimony by the owner of the service station from whom petitioners rented trucks used in the thefts, and by five witnesses who saw petitioners unloading boxes from a truck late at night and carrying the boxes into Knuckles' store. The prosecutor also introduced into evidence, over petitioners' objections, portions of each petitioner's confession which implicated the other in a manner now conceded to be contrary to Those considerable parts of each petitioner's confession which did not implicate the other were admitted without objection. The jury returned verdicts of guilty on all counts. On appeal, the Court of Appeals for the Sixth Circuit recognized that a error had occurred, but went on to conclude that the independent proof of petitioners' guilt was "so overwhelming that the error was harmless," citing The Court of Appeals also held that the stolen merchandise seized pursuant to the defective warrant was properly admitted against petitioners, stating: "This ruling [of the District Court] was correct because appellants claimed no possessory or proprietary *227 rights in the goods or in Knuckles' store, and it is clear that they cannot assert the Fourth Amendment right of another." (1) Petitioners contend that they have "automatic" standing to challenge the search and seizure at Knuckles' store. They rely on the decision of this Court in establishing a rule of "automatic" standing to contest an allegedly illegal search where the same possession needed to establish standing is "an essential element of the offense charged." That case involved (a) a seizure of contraband narcotics, (b) a defendant who was present at the seizure,[2] and (c) an offense in which the defendant's possession of the seized narcotics at the time of the contested search and seizure was a critical part of the Government's case. Jones, Mr. Justice Frankfurter, writing for the Court in Jones, emphasized the "dilemma" inherent in a defendant's need to allege "possession" to contest a seizure, when such admission of possession could later be used against him. Mr. Justice Frankfurter quoted the words of Judge Learned Hand: "Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they *228 must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma." The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress U.S., at 389-394. For example, under the doctrine the defendant is permitted to establish the requisite standing by claiming "possession" of incriminating If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, at the pretrial suppression hearing, a possessory interest in the goods at Knuckles' store without any danger of incriminating themselves. They did not do so. But it is not necessary for us now to determine whether our decision in makes Jones' "automatic" standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is "an essential element of the offense charged." U. S., at Here, unlike Jones, the Government's case against petitioners does not depend on petitioners' possession of the seized evidence at the time of the contested search and seizure.[3]*2 The stolen goods seized had been transported and "sold" by petitioners to Knuckles approximately two months before the challenged search. The conspiracy and transportation alleged by the indictment were carefully limited to the period before the day of the search. In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking "advantage of contradictory positions." See United v. Allsenberrie, ; United v. Cowan, ; Niro v. United ; United v. Bozza, But cf. United v. Price, (CA2), cert. denied, Again, we do not decide that this vice of prosecutorial self-contradiction warrants the continued survival of Jones' "automatic" standing now that our decision in has removed the danger of coerced self-incrimination. We simply see no reason to afford such "automatic" standing where, as here, there was no risk to a defendant of either self-incrimination or prosecutorial self-contradiction. Petitioners were afforded a full hearing on standing and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized. *230 Nor, incidentally, does the record reveal any such interest.[4] As the Court of Appeals correctly concluded, petitioners had no standing to contest the defective warrant used to search Knuckles' store; they could not then and cannot now rely on the Fourth Amendment rights of another. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. ;" Alderman v. United See Wong Sun v. United (2) The Solicitor General concedes that, under statements made by petitioners were improperly admitted into Neither petitioner testified at the trial. The prosecution tendered police testimony as to statements made by Smith implicating Brown in the crimes charged, even though these statements were made out of Brown's presence.[5] This testimony was *231 admitted into Similar statements, made by Brown relating to Smith, were also admitted. Petitioners' counsel made timely objections. Upon an independent examination of the record, we agree with the Court of Appeals that the errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. In this case, as in the independent evidence "is so overwhelming that unless we say that no violation of can constitute harmless error, we must leave this conviction undisturbed," We reject the notion that a error can never be harmless. "[A] defendant is entitled to a fair trial but not a perfect one," *232 for there are no perfect trials. quoting Lutwak v. United See ; 3 U.S. 18, Affirmed.

Justice Rehnquist

majority

Logue v. United States

https://www.courtlistener.com/opinion/108814/logue-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108814/

1972-141

Reagan Logue, a federal prisoner confined in a county jail pending trial, fashioned a noose from a bandage covering a laceration on his left arm and hanged himself. His mother and adoptive father sued the United States for damages under the Federal Tort Claims Act, 28 U.S. C. § 1346 (b),[1] claiming that negligence on the part of Government agents and employees proximately caused the death of their son. The District Court determined that Logue's death was the result of negligence for which the United States was liable, and awarded damages. 334 F. Supp. 322 (SD Tex. 1971). *523 The Court of Appeals reversed this judgment, 459 F.2d 408 (1972), rehearing en banc denied, 463 F.2d 1340 (1972). We granted certiorari in order to consider the application to this case of the Act's exclusion of employees of a "contractor with the United States." 28 U.S. C. § 2671. On May 22, 1968, Reagan Logue was arrested by Deputy United States Marshal Del Bowers on a bench warrant charging Logue with conspiracy to smuggle 229 pounds of marihuana into the United States. After a hearing, he was taken to the Nueces County jail in Corpus Christi, Texas, to await trial. This jail is one of some 800 institutions operated by state and local governments that contract with the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of federal prisoners.[2] *524 On the day after his initial incarceration Logue attempted to commit suicide by slashing veins in his left arm. He was immediately taken to a hospital emergency room for treatment of the laceration. While the wound turned out to be relatively minor, Logue was admitted to the hospital's psychiatric floor because of the attending doctor's observation that he was actively hallucinating and out of touch with reality. The psychiatrist who later took charge of the case, recognizing Logue's suicidal tendencies, recommended to federal officials that he be committed to a medical facility for rehabilitation.[3] On the following day, May 24, the District Court ordered that Logue be transferred to a federal medical facility pursuant to 18 U.S. C. § 4244. While awaiting the processing of papers and other steps preparatory to the actual transfer, however, federal officials made arrangements to transfer Logue back to the Nueces County jail.[4] Before the transfer, Bowers informed the chief jailer of Logue's suicidal tendencies and requested that he prepare for Logue a special cell removed of all dangerous objects that might be used in another suicide attempt. Such a cell was prepared by the jail authorities, and Logue was placed in it. Bowers made no specific arrangements for constant surveillance of Logue once he *525 was confined, and the jail employees made only periodic checks when they were on that floor for some other reason. The day after his return to the jail, Logue removed the Kerlix bandage that had been applied to the laceration on his left arm and hanged himself. The District Court found that there had been a contract between the Government and Nueces County whereby the latter undertook to house federal prisoners in the county jail at Corpus Christi. That court nonetheless found that the United States was liable for the negligence of the employees of the Nueces County sheriff as well as for the negligence of its own employee. The court found the former to have been negligent because their surveillance of Logue was "inadequate," and it found Bowers to have been negligent in failing to make "specific arrangements . . . for constant surveillance of the prisoner." The Court of Appeals reversed the judgment of the District Court, stating in its opinion that: "We interpret [18 U.S. C. § 4002] as fixing the status of the Nueces County jail as that of a `contractor.' Title 28 U.S. C., Sec. 2671 . . . . This insulates the United States from liability under the FTCA for the negligent acts or omissions of the jail's employees. We find no support in the record for holding that Deputy Marshal Bowers had any power or authority to control any of the internal functions of the Nueces County jail. The deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased." 459 F.2d, at 411. The Federal Tort Claims Act makes the United States liable for money damages "caused by the negligent or wrongful act or omission of any employee of the Government *526. . . ." 28 U.S. C. § 1346 (b). Section 2671 of Title 28 U.S. C. contains the following definitions: "As used in this chapter and sections 1346 (b) and 2401 (b) of this title, the term `Federal agency' includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. " `Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." For the Government to be liable for the negligence of an employee of the Nueces County jail, he must be shown to be an "employee of the Government" as that term is used in the Federal Tort Claims Act. Though petitioners do not always distinguish between their two theories, they appear to contend alternatively that the Nueces County jail is a "Federal agency" by reason of its contract for the care of federal prisoners, or that the employees of the jail are "acting on behalf of" the Bureau of Prisons or the Government in performing services for federal prisoners. The Court of Appeals rejected these contentions, and we believe that it was right in doing so. We read that portion of the Court of Appeals' opinion quoted supra as treating the "contractor" exemption from the definition of "Federal agency" in § 2671 as adopting the common-law distinction between the liability of an employer for the negligent acts of his own employees *527 and his liability for the employees of a party with whom he contracts for a specified performance. Both the modern common law as reflected in the Restatement of Agency[5] and the law of Texas[6] make the distinction between the servant or agent relationship and that of independent contractor turn on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract. In Maryland v. United States, 381 U.S. 41 (1965), one of the factors relied upon by the Court in determining that both military and civilian National Guard personnel were employees of the States, rather than of the United States, for purposes of the Federal Tort Claims Act, was the "supervision exercised by the States over both military and civilian personnel," id., at 53. The courts of appeals that have had occasion to decide the question appear to have unvaryingly held that the "contractor with the United States" language of § 2671 adopts the traditional distinction between employees of the principal and employees of an independent contractor with the principal, and to have also held that the critical factor in making this determination is the authority of *528 the principal to control the detailed physical performance of the contractor. See, e. g., Gowdy v. United States, 412 F.2d 525, 534 (CA6 1969); Eutsler v. United States, 376 F.2d 634 (CA10 1967); Yates v. United States, 365 F.2d 663 (CA4 1966); Kirk v. United States, 270 F.2d 110 (CA9 1959). Petitioners cite the commentary to the Restatement (Second) of Torts § 409 (1965), to the effect that the common-law distinction that shields the employer from liability for injuries caused to another by the negligent act of a contractor or his servant is subject to so many exceptions that it is the general rule "only in the sense that it is applied where no good reason is found for departing from it." Congress, of course, could have left the determination as to whose negligence the Government should be liable for under the Federal Tort Claims Act to the law of the State involved, as it did with other aspects of liability under the Act. But it chose not to do this, and instead incorporated into the definitions of the Act the exemption from liability for injury caused by employees of a contractor. While this congressional choice leaves the courts free to look to the law of torts and agency to define "contractor," it does not leave them free to abrogate the exemption that the Act provides. Petitioners suggest that because 18 U.S. C. § 4042 imposes a duty on the Bureau of Prisons to "provide for the safekeeping, care, and subsistence of all persons charged with . . . offenses against the United States . . ." the Nueces County employees who were discharging the Government's obligation by contract should be held to be employees of the Government for purposes of liability under the Act.[7] This Court held in United States v. Muniz, 374 U.S. 150 (1963), that a breach of the *529 duty imposed on the Government by 18 U.S. C. § 4042 was actionable under the Act. But the same public law that imposed this duty on the Government also authorized the Government to contract with state and local authorities to provide safekeeping and care: "For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons. ..... "The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons." 18 U.S. C. § 4002 (emphasis added). Thus, Congress not only authorized the Government to make contracts such as the one here in question, but rather clearly contemplated that the day-to-day operations of the contractor's facilities were to be in the hands of the contractor, with the Government's role limited to the payment of sufficiently high rates to induce the contractor to do a good job. The contract entered into between the Government and Nueces County reflects a similar division of responsibility. The county undertakes to provide custody in accordance with the Bureau of Prisons' "rules and regulations governing the care and custody of persons committed" under the contract. *530 These rules in turn specify standards of treatment for federal prisoners, including methods of discipline, rules for communicating with attorneys, visitation privileges, mail, medical services, and employment. But the agreement gives the United States no authority to physically supervise the conduct of the jail's employees; it reserves to the United States only "the right to enter the institution. . . at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed." The Court of Appeals' conclusion that the deputy marshal had no authority to control the activities of the sheriff's employees is supported by both the enabling statute and the contract actually executed between the parties. We agree with its resultant holding that the sheriff's employees were employees of a "contractor with the United States," and not, therefore, employees of a "Federal agency." The judges of the Court of Appeals who dissented from the denial of rehearing en banc pointed out that petitioners alternatively contended in that court, as they do here, that even though the sheriffs' employees might not be "employees" of a federal agency, they might nonetheless be "acting on behalf of a Federal agency in an official capacity . . . ." 463 F.2d, at 1342. If petitioners were successful in establishing this contention, of course, an employee of the Nueces County jail would be an "employee of the government" under § 2671 even though he was not an "employee" of a federal agency. The legislative history to which we are referred by the parties sheds virtually no light on the congressional purpose in enacting the "acting on behalf of" language of § 2671. The long gestation period of the Act in the committees of Congress has been recounted in Dalehite v. United States, 346 U.S. 15, 24-30 (1953), and this lengthy period may have something to do with the paucity *531 of helpful committee reports on this point. One of the more immediate antecedents of the bill that Congress enacted contained identical "acting on behalf of" language: "and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." H. R. 5373, 77th Cong., 2d Sess., § 101 (1942), quoted in Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 1 (1942). One of the appendices to the hearings on these bills compares the provisions of H. R. 6463, containing the "acting on behalf of" language, with previous drafts, and states that " `Employee of the Government' in the present bill is defined to include uncompensated or temporary officers or employees of the United States." Hearings, supra, at 58. The committee's observation thus affords some support to the Government's contention that the language is designed to cover special situations such as the "dollar-a-year" man who is in the service of the Government without pay, or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangement. The dissenting judges in the Court of Appeals expressed the view that "when the Government decides that a particular individual should assume obligations and responsibilities virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual's breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States." 463 F.2d, at 1342-1343. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as "acting on behalf of" a federal agency *532 simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of "Federal agency" in § 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees.[8] While we therefore agree with the conclusion of the Court of Appeals that the Government was not liable for the negligence of the employees of Nueces County, we disagree with its implicit determination that such a conclusion ends the case. For the District Court imposed liability on the Government, not only for the negligent acts of employees of the Nueces County sheriff, but also for negligent acts of Deputy Marshal Bowers, who was concededly an employee of the Government. The District Court found that Bowers, knowing of the prisoner's suicidal tendencies, should have made "specific arrangements. . . for constant surveillance of the prisoner," and that his failure to do so was negligence. The Court of Appeals in that portion of its opinion quoted supra, at 525, stated that "[t]he deputy marshal, accordingly, *533 violated no duty of safekeeping with respect to the deceased." 459 F.2d, at 411. But that conclusion appears to us to follow from the court's discussion of the nature of the intergovernmental relationship and the status of the sheriff's employees rather than being a separate rejection of the finding of the District Court that Bowers himself was negligent. Since the Court of Appeals thus did not consider the distinct question regarding the negligence of Bowers, we believe that the parties' arguments on that question should be addressed in the first instance to the Court of Appeals. We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of the liability of the Government insofar as that liability may be based on the negligence of Deputy Marshal Bowers. It is so ordered.

Reagan Logue, a federal prisoner confined in a county jail pending trial, fashioned a noose from a bandage covering a laceration on his left arm and hanged himself. His mother and adoptive father sued the United States for damages under the Federal Tort Claims Act, 28 U.S. C. 1346 (b),[1] claiming that negligence on the part of Government agents and employees proximately caused the death of their son. The District Court determined that Logue's death was the result of negligence for which the United States was liable, and awarded damages. *523 The Court of Appeals reversed this judgment, rehearing en banc denied, We granted certiorari in order to consider the application to this case of the Act's exclusion of employees of a "contractor with the United States." 28 U.S. C. 2671. On May 22, 1968, Reagan Logue was arrested by Deputy United States Marshal Del Bowers on a bench warrant charging Logue with conspiracy to smuggle 229 pounds of marihuana into the United States. After a hearing, he was taken to the Nueces County jail in Corpus Christi, Texas, to await trial. This jail is one of some 800 institutions operated by state and local governments that contract with the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of federal prisoners.[2] *524 On the day after his initial incarceration Logue attempted to commit suicide by slashing veins in his left arm. He was immediately taken to a hospital emergency room for treatment of the laceration. While the wound turned out to be relatively minor, Logue was admitted to the hospital's psychiatric floor because of the attending doctor's observation that he was actively hallucinating and out of touch with reality. The psychiatrist who later took charge of the case, recognizing Logue's suicidal tendencies, recommended to federal officials that he be committed to a medical facility for rehabilitation.[3] On the following day, May 24, the District Court ordered that Logue be transferred to a federal medical facility pursuant to 18 U.S. C. 4244. While awaiting the processing of papers and other steps preparatory to the actual transfer, however, federal officials made arrangements to transfer Logue back to the Nueces County jail.[4] Before the transfer, Bowers informed the chief jailer of Logue's suicidal tendencies and requested that he prepare for Logue a special cell removed of all dangerous objects that might be used in another suicide attempt. Such a cell was prepared by the jail authorities, and Logue was placed in it. Bowers made no specific arrangements for constant surveillance of Logue once he *525 was confined, and the jail employees made only periodic checks when they were on that floor for some other reason. The day after his return to the jail, Logue removed the Kerlix bandage that had been applied to the laceration on his left arm and hanged himself. The District Court found that there had been a contract between the Government and Nueces County whereby the latter undertook to house federal prisoners in the county jail at Corpus Christi. That court nonetheless found that the United States was liable for the negligence of the employees of the Nueces County sheriff as well as for the negligence of its own employee. The court found the former to have been negligent because their surveillance of Logue was "inadequate," and it found Bowers to have been negligent in failing to make "specific arrangements for constant surveillance of the prisoner." The Court of Appeals reversed the judgment of the District Court, stating in its that: "We interpret [18 U.S. C. 4002] as fixing the status of the Nueces County jail as that of a `contractor.' Title 28 U.S. C., Sec. 2671 This insulates the United States from liability under the FTCA for the negligent acts or omissions of the jail's employees. We find no support in the record for holding that Deputy Marshal Bowers had any power or authority to control any of the internal functions of the Nueces County jail. The deputy marshal, accordingly, violated no duty of safekeeping with respect to the deceased." The Federal Tort Claims Act makes the United States liable for money damages "caused by the negligent or wrongful act or omission of any employee of the Government *526." 28 U.S. C. 1346 (b). Section 2671 of Title 28 U.S. C. contains the following definitions: "As used in this chapter and sections 1346 (b) and 2401 (b) of this title, the term `Federal agency' includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. " `Employee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." For the Government to be liable for the negligence of an employee of the Nueces County jail, he must be shown to be an "employee of the Government" as that term is used in the Federal Tort Claims Act. Though petitioners do not always distinguish between their two theories, they appear to contend alternatively that the Nueces County jail is a "Federal agency" by reason of its contract for the care of federal prisoners, or that the employees of the jail are "acting on behalf of" the Bureau of Prisons or the Government in performing services for federal prisoners. The Court of Appeals rejected these contentions, and we believe that it was right in doing so. We read that portion of the Court of Appeals' as treating the "contractor" exemption from the definition of "Federal agency" in 2671 as adopting the common-law distinction between the liability of an employer for the negligent acts of his own employees *527 and his liability for the employees of a party with whom he contracts for a specified performance. Both the modern common law as reflected in the Restatement of Agency[5] and the law of Texas[6] make the distinction between the servant or agent relationship and that of independent contractor turn on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract. In one of the factors relied upon by the Court in determining that both military and civilian National Guard personnel were employees of the States, rather than of the United States, for purposes of the Federal Tort Claims Act, was the "supervision exercised by the States over both military and civilian personnel," The courts of appeals that have had occasion to decide the question appear to have unvaryingly held that the "contractor with the United States" language of 2671 adopts the traditional distinction between employees of the principal and employees of an independent contractor with the principal, and to have also held that the critical factor in making this determination is the authority of *528 the principal to control the detailed physical performance of the contractor. See, e. g., ; ; ; Petitioners cite the commentary to the Restatement (Second) of Torts 409 to the effect that the common-law distinction that shields the employer from liability for injuries caused to another by the negligent act of a contractor or his servant is subject to so many exceptions that it is the general rule "only in the sense that it is applied where no good reason is found for departing from it." Congress, of course, could have left the determination as to whose negligence the Government should be liable for under the Federal Tort Claims Act to the law of the State involved, as it did with other aspects of liability under the Act. But it chose not to do this, and instead incorporated into the definitions of the Act the exemption from liability for injury caused by employees of a contractor. While this congressional choice leaves the courts free to look to the law of torts and agency to define "contractor," it does not leave them free to abrogate the exemption that the Act provides. Petitioners suggest that because 18 U.S. C. 4042 imposes a duty on the Bureau of Prisons to "provide for the safekeeping, care, and subsistence of all persons charged with offenses against the United States" the Nueces County employees who were discharging the Government's obligation by contract should be held to be employees of the Government for purposes of liability under the Act.[7] This Court held in United that a breach of the *529 duty imposed on the Government by 18 U.S. C. 4042 was actionable under the Act. But the same public law that imposed this duty on the Government also authorized the Government to contract with state and local authorities to provide safekeeping and care: "For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons. "The rates to be paid for the care and custody of said persons shall take into consideration the character of the quarters furnished, sanitary conditions, and quality of subsistence and may be such as will permit and encourage the proper authorities to provide reasonably decent, sanitary, and healthful quarters and subsistence for such persons." 18 U.S. C. 4002 (emphasis added). Thus, Congress not only authorized the Government to make contracts such as the one here in question, but rather clearly contemplated that the day-to-day operations of the contractor's facilities were to be in the hands of the contractor, with the Government's role limited to the payment of sufficiently high rates to induce the contractor to do a good job. The contract entered into between the Government and Nueces County reflects a similar division of responsibility. The county undertakes to provide custody in accordance with the Bureau of Prisons' "rules and regulations governing the care and custody of persons committed" under the contract. *530 These rules in turn specify standards of treatment for federal prisoners, including methods of discipline, rules for communicating with attorneys, visitation privileges, mail, medical services, and employment. But the agreement gives the United States no authority to physically supervise the conduct of the jail's employees; it reserves to the United States only "the right to enter the institution. at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed." The Court of Appeals' conclusion that the deputy marshal had no authority to control the activities of the sheriff's employees is supported by both the enabling statute and the contract actually executed between the parties. We agree with its resultant holding that the sheriff's employees were employees of a "contractor with the United States," and not, therefore, employees of a "Federal agency." The judges of the Court of Appeals who dissented from the denial of rehearing en banc pointed out that petitioners alternatively contended in that court, as they do here, that even though the sheriffs' employees might not be "employees" of a federal agency, they might nonetheless be "acting on behalf of a Federal agency in an official capacity" If petitioners were successful in establishing this contention, of course, an employee of the Nueces County jail would be an "employee of the government" under 2671 even though he was not an "employee" of a federal agency. The legislative history to which we are referred by the parties sheds virtually no light on the congressional purpose in enacting the "acting on behalf of" language of 2671. The long gestation period of the Act in the committees of Congress has been recounted in and this lengthy period may have something to do with the paucity *531 of helpful committee reports on this point. One of the more immediate antecedents of the bill that Congress enacted contained identical "acting on behalf of" language: "and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." H. R. 5373, 77th Cong., 2d Sess., 101 (1942), in Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 1 (1942). One of the appendices to the hearings on these bills compares the provisions of H. R. 6463, containing the "acting on behalf of" language, with previous drafts, and states that " `Employee of the Government' in the present bill is defined to include uncompensated or temporary officers or employees of the United States." Hearings, The committee's observation thus affords some support to the Government's contention that the language is designed to cover special situations such as the "dollar-a-year" man who is in the service of the Government without pay, or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangement. The dissenting judges in the Court of Appeals expressed the view that "when the Government decides that a particular individual should assume obligations and responsibilities virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual's breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States." -1343. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as "acting on behalf of" a federal agency *532 simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of "Federal agency" in 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees.[8] While we therefore agree with the conclusion of the Court of Appeals that the Government was not liable for the negligence of the employees of Nueces County, we disagree with its implicit determination that such a conclusion ends the case. For the District Court imposed liability on the Government, not only for the negligent acts of employees of the Nueces County sheriff, but also for negligent acts of Deputy Marshal Bowers, who was concededly an employee of the Government. The District Court found that Bowers, knowing of the prisoner's suicidal tendencies, should have made "specific arrangements. for constant surveillance of the prisoner," and that his failure to do so was negligence. The Court of Appeals in that portion of its stated that "[t]he deputy marshal, accordingly, *533 violated no duty of safekeeping with respect to the deceased." But that conclusion appears to us to follow from the court's discussion of the nature of the intergovernmental relationship and the status of the sheriff's employees rather than being a separate rejection of the finding of the District Court that Bowers himself was negligent. Since the Court of Appeals thus did not consider the distinct question regarding the negligence of Bowers, we believe that the parties' arguments on that question should be addressed in the first instance to the Court of Appeals. We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of the liability of the Government insofar as that liability may be based on the negligence of Deputy Marshal Bowers. It is so ordered.

Justice Burger

dissenting

Wright v. Council of Emporia

https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/

https://www.courtlistener.com/api/rest/v3/clusters/108587/

1971-153

If it appeared that the city of Emporia's operation of a separate school system would either perpetuate racial segregation in the schools of the Greensville County area or otherwise frustrate the dismantling of the dual system in that area, I would unhesitatingly join in reversing the judgment of the Court of Appeals and reinstating the judgment of the District Court. However, I do not believe the record supports such findings and can only conclude that the District Court abused its discretion in preventing Emporia from exercising its lawful right to provide for the education of its own children. By accepting the District Court's conclusion that Emporia's operation of its own schools would "impede the dismantling of the dual system," the Court necessarily implies that the result of the severance would be something less than unitary schools, and that segregated education would persist in some measure in the classrooms of the Greensville County area. The Court does not articulate the standard by which it reaches this conclusion, and its result far exceeds the contemplation of Brown v. Board of Education, 347 U.S. 483 (1954), and all succeeding cases, including Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). If the severance of the two systems were permitted to proceed, the assignment of children to schools would depend solely on their residence. County residents would attend county schools, and city residents would attend city schools. Assignment to schools would in no sense *472 depend on race. Such a geographic assignment pattern is prima facie consistent with the Equal Protection Clause. See Spencer v. Kugler, 326 F. Supp. 1235 (N. J. 1971), aff'd, 404 U.S. 1027 (1972). However, where a school system has been operated on a segregated basis in the past, and where ostensibly neutral attendance zones or district lines are drawn where none have existed before, we do not close our eyes to the facts in favor of theory. In Green v. County School Board, 391 U.S. 430 (1968), the Court ruled that dual school systems must cease to exist in an objective sense as well as under the law. It was apparent that under the freedom-of-choice plan before the Court in Green, the mere elimination of mandatory segregation had provided no meaningful remedy. Green imposed on school boards the responsibility to "fashion steps which promise realistically to convert promptly to a system without a `white' school and a `Negro' school, but just schools." 391 U.S., at 442. That, I believe, is precisely what would result if Emporia were permitted to operate its own school system— schools neither Negro nor white, "but just schools." As separate systems, both Emporia and Greensville County would have a majority of Negro students, the former slightly more than half, the latter slightly more than two-thirds. In the words of the Court of Appeals, "[t]he Emporia city unit would not be a white island in an otherwise black county." 442 F.2d, at 573. Moreover, the Negro majority in the remaining county system would only slightly exceed that of the entire county area including Emporia. It is undisputed that education would be conducted on a completely desegregated basis within the separate systems. Thus, the situation would in no sense be comparable to that where the creation of attendance zones within a single formerly segregated school system leaves an inordinate number *473 of one-race schools, such as were found in Davis v. Board of School Comm'rs, 402 U.S. 33 (1971). Rather than perpetuating a dual system, I believe the proposed arrangement would completely eliminate all traces of state-imposed segregation. It is quite true that the racial ratios of the two school systems would differ, but the elimination of such disparities is not the mission of desegregation. We stated in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S., at 24: "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." It can no more be said that racial balance is the norm to be sought, than it can be said that mere racial imbalance was the condition requiring a judicial remedy. The pointlessness of such a "racial balancing" approach is well illustrated by the facts of this case. The District Court and the petitioners have placed great emphasis on the estimated six-percent increase in the proportion of Negro students in the county schools that would result from Emporia's withdrawal. I do not see how a difference of one or two children per class[1] would even be noticed, let alone how it would render *474 a school part of a dual system. We have seen that the normal movement of populations could bring about such shifts in a relatively short period of time. Obsession with such minor statistical differences reflects the gravely mistaken view that a plan providing more consistent racial ratios is somehow more unitary than one which tolerates a lack of racial balance. Since the goal is to dismantle dual school systems rather than to reproduce in each classroom a microcosmic reflection of the racial proportions of a given geographical area, there is no basis for saying that a plan providing a uniform racial balance is more effective or constitutionally preferred. School authorities may wish to pursue that goal as a matter of policy, but we have made it plain that it is not constitutionally mandated. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S., at 16. The Court disavows a "racial balancing" approach, and seeks to justify the District Court's ruling by relying on several additional factors thought to aggravate the effect of the racial disparity. The real significance of these additional factors is so negligible as to suggest that the racial imbalance itself may be what the Court finds most unacceptable. First, the Court raises the specter of resegregation resulting from the operation of separate school systems in the county area, but on the record in this case this is, at best, highly speculative. The Court suggests two reasons why such an additional racial shift could be anticipated with the existence of a separate school system for Emporia: white students residing in the county might abandon the public schools in favor of private academies, and white students residing in the city might leave private schools and enroll in the city school. In assessing these projections it is necessary to compare the nature of the proposed separate systems with *475 that of the court-ordered "pairing" system. Thus the first possibility, that white students from the county might enter private schools, assumes that white families would be more likely to withdraw their children from public schools that are 72% Negro than from those that are 66% Negro. At most, any such difference would be marginal, and in fact it seems highly improbable that there would be any difference at all. The second possibility postulated by the Court seems equally unlikely; it assumes that families from the city who had previously withdrawn their children from the public schools due to impending desegregation, would return their children to public schools having more Negro than white pupils. The Court does not mention the possibility of some form of mass migration of white families into the city from the outlying county. Of course, when there are adjoining school districts differing in their racial compositions, it is always conceivable that the differences will be accentuated by the so-called "white flight" phenomenon. But that danger seems remote in a situation such as this where there is a predominantly Negro population throughout the entire area of concern. Second, the Court attaches significance to the fact that the school buildings located in the county were formerly used as all-Negro schools and intimates that these facilities are of generally poorer quality than those in the city. But the District Court made no such finding of fact, and the record does not support the Court's suggestion on this point. Admittedly, some dissatisfaction was expressed with the sites of the elementary schools in the county, and only the city elementary school has an auditorium. However, all three elementary schools located in the county are more modern than any school building located in the city, and the county and city high school buildings are identical in every respect. *476 On a fair reading of the entire record, it can only be said that any differences between the educational facilities located in the city and those in the county are de minimis. Finally, the Court states that the process of desegregation would be impeded by the "adverse psychological effect" that a separate city system would have on Negro students in the county. Here, again, the Court seeks to justify the District Court's discretionary action by reliance on a factor never considered by that court. More important, it surpasses the bounds of reason to equate the psychological impact of creating adjoining unitary school systems, both having Negro majorities, with the feelings of inferiority referred to in Brown I as engendered by a segregated school system. In Brown I the Court emphasized that the legal policy of separating children in schools solely according to their race inevitably generates a sense of inferiority. These observations were supported by common human experience and reinforced by psychological authority. Here the Court seeks to make a similar judgment in a setting where no child is accorded differing treatment on the basis of race. This wholly speculative observation by the Court is supported neither by common experience nor by scientific authority. Even giving maximum rational weight to all of the factors mentioned by the Court, I cannot conclude that separate systems for Emporia and Greensville County would be anything less than fully unitary and nonracial. The foundation and superstructure of the dual system would be dissolved, and the result would not factually preserve the separation of races that existed in the past. We noted in Swann "that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law." 402 *477 U. S., at 26. This reflects our consistent emphasis on the elimination of the discriminatory systems, rather than on mere numbers in particular schools. The proposed systems here would retain no "one-race, or virtually one-race schools," but more important, all vestiges of the discriminatory system would be removed. That is all the Constitution commands. It is argued that even if Emporia's operation of its own unitary school system would have been constitutionally permissible, it was nevertheless within the equitable discretion of the District Court to insist on a "more effective" plan of desegregation in the form of a county-wide school system. In Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II), the Court first conferred on the district courts the responsibility to enforce the desegregation of the schools, if school authorities failed to do so, according to equitable remedial principles. While we have emphasized the flexibility of the power of district courts in this process, the invocation of remedial jurisdiction is not equivalent to having a school district placed in receivership. It has been implicit in all of our decisions from Brown II to Swann, that if local authorities devise a plan that will effectively eliminate segregation in the schools, a district court must accept such a plan unless there are strong reasons why a different plan is to be preferred. A local school board plan that will eliminate dual schools, stop discrimination, and improve the quality of education ought not be cast aside because a judge can evolve some other plan that accomplishes the same result, or what he considers a preferable result, with a two percent, four percent, or six percent difference in racial composition. Such an approach gives controlling weight to sociological theories, not constitutional doctrine. This limitation on the discretion of the district courts involves more than polite deference to the role of local *478 governments. Local control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well. The success of any school system depends on a vast range of factors that lie beyond the competence and power of the courts. Curricular decisions, the structuring of grade levels, the planning of extracurricular activities, to mention a few, are matters lying solely within the province of school officials, who maintain a day-to-day supervision that a judge cannot. A plan devised by school officials is apt to be attuned to these highly relevant educational goals; a plan deemed preferable in the abstract by a judge might well overlook and thus undermine these primary concerns. The discretion of a district court is further limited where, as here, it deals with totally separate political entities. This is a very different case from one where a school board proposes attendance zones within a single school district or even one where a school district is newly formed within a county unit. Under Virginia law, Emporia is as independent from Greensville County as one State is from another. See City of Richmond v. County Board, 199 Va. 679, 684, 101 S.E.2d 641, 644 (1958); Murray v. City of Roanoke, 192 Va. 321, 324, 64 S.E.2d 804, 807 (1951). This may be an anomaly in municipal jurisprudence, but it is Virginia's anomaly; it is of ancient origin, and it is not forbidden by the Constitution. To bar the city of Emporia from operating its own school system is to strip it of its most important governmental responsibility, and thus largely to deny its existence as an independent governmental entity. It is a serious step and, absent the factors that persuade me to the contrary in Scotland Neck,[2] decided today, I am unwilling to go that far. *479 Although the rights and powers of a bona fide political entity may not be used as a cloak for evasive action, neither can those powers be nullified by judicial intervention to achieve a unitary system in a particular way. When a plan devised by local authorities crosses the threshold of achieving actual desegregation, it is not for the district courts to overstep local prerogatives and insist on some other alternative. Judicial power ends when a dual school system has ceased to exist. Since Emporia's operation of a separate school system would not compromise the goal of eliminating dual schools, there is no basis for requiring Emporia to demonstrate the necessity of its decision. The "heavy burden" test referred to in Green applies only where there is serious reason to doubt the efficacy of a school board's plan as a means of achieving desegregation, and there is no basis for such doubt here. Nonetheless, the Court's treatment of Emporia's reasons for establishing a separate system merits comment. The Court makes light of Emporia's desire to create a high-quality, unitary school system for the children of its citizens. In so doing, the Court disregards the following explicit finding of the District Court: "The city clearly contemplates a superior quality educational program. It is anticipated that the cost will be such as to require higher tax payments by city residents. A kindergarten program, ungraded primary levels, health services, adult education, and a low pupil-teacher ratio are included in the plan . . . ." 309 F. Supp., at 674. Furthermore, the Court suggests that if Emporia were in fact to provide the top-flight educational program the District Judge anticipated, it could only worsen the quality of education in the remaining county schools. To be sure, there was cause for concern over the relative quality of education offered in the county schools; *480 as the District Court observed, county officials did "not embrace the court-ordered unitary plan with enthusiasm." 309 F. Supp., at 680. The record shows that prior to the 1969-1970 school year, per-pupil expenditures in Greensville County lagged behind the state median, and that the increase in the county school budget for the 1969-1970 school year was insufficient to keep abreast of inflation, not to mention increased transportation costs. But the city of Emporia was in no position to alleviate this problem for the county. The county had previously refused to allow the city to participate in joint administration of the schools, and the city had absolutely no power to affect the level of funding for the county schools. Under the contract, Emporia was the purchaser of whatever educational services the county had to offer. Out of understandable concern for the quality of these services, it sought to alter the contractual arrangement in order to provide better unitary schools. There is no basis on this record for assuming that the quality of education in the county schools was likely to suffer further due to Emporia's withdrawal. The Court relies on the District Court's finding that "the desire of the city leaders, coupled with their obvious leadership ability, is and will be an important facet in the successful operation of any court-ordered plan." 309 F. Supp., at 679. The District Court made this finding despite the fact that the county had refused to administer the schools jointly with the city, and despite uncontradicted evidence that there was no line of communications between the city and county governments, that the city government had been unable to get any cooperation from the county government, and that there was an atmosphere of active antagonism between the two governments. With all deference to the trier of fact, I cannot accept this finding as supported by evidence in the record of this case. It appears that the District Court wanted *481 that "obvious leadership ability" of Emporia's citizens to exert its influence on the more reluctant leadership in the county. This is a laudable goal in the abstract, but the courts must adjust their remedies to the facts of each case as they bear on the central problem of eliminating a dual system. Although acknowledging Emporia's need to have some "[d]irect control over decisions vitally affecting the education of [its] children," the Court states that since Emporia found the contractual arrangement tolerable prior to 1969, it should not now be heard to complain. However, the city did not enter that contract of its own free choice. From the time Emporia became a city, consideration was given to the formation of a separate school system, and it was at least thought necessary that the city participate in administration of the county school system. After the county rejected the city's proposal for joint administration, the county threatened to terminate educational services for city children unless the city entered an agreement by April 30, 1968. Only then— under virtual duress—did the city submit to the contractual arrangement. It was not until June 1969 that the city was advised by its counsel that the agreement might be illegal. Steps were then taken to terminate the strained relationship. Recognizing the tensions inherent in a contractual arrangement put together under these conditions, the Court indicates that Emporia might be permitted to operate a separate school system at some future time. The Court does not explain how the passage of time will substantially alter the situation that existed at the time the District Court entered its injunction. If, as the Court states, desegregation in the county was destined to fail if Emporia established its own school system in 1969, it is difficult to understand why it would not be an undue risk to allow separation in the future. *482 The more realistic view is that there was never such a danger, and that the District Court had no cause to disregard Emporia's desire to free itself from its ties to Greensville County. However, even on the Court's terms, I assume that Emporia could go back to the District Court tomorrow and renew its request to operate a separate system. The county-wide plan has been in effect for the past three years, and the city should now be relieved of the court-imposed duty to purchase whatever quality of education the county sees fit to provide. Finally, some discussion is warranted of the relevance of discriminatory purpose in cases such as these. It is, of course, correct that "[t]he measure of any desegregation plan is its effectiveness," Davis v. Board of School Comm'rs, 402 U. S., at 37, and that a plan that stops short of dismantling a dual school system cannot be redeemed by benevolent motives. But it is also true that even where a dual system has in fact been dismantled, as it plainly has been in Emporia, we must still be alert to make sure that ostensibly nondiscriminatory actions are not designed to exclude children from schools because of their race. We are well aware that the progress of school desegregation since 1954 has been hampered by persistent resistance and evasion in many places. Thus, the normal judicial reluctance to probe the motives or purposes underlying official acts must yield to the realities in this very sensitive area of constitutional adjudication. Compare Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964), with Palmer v. Thompson, 403 U.S. 217 (1971). There is no basis for concluding, on this record, that Emporia's decision to operate a separate school system was the manifestation of a discriminatory purpose. The strongest finding made by the District Court was that race was "in a sense" a factor in the city's decision; read in context, this ambiguous finding does not relate to any *483 invidious consideration of race. The District Court relied solely on the following testimony of the chairman of the city school board: "Race, of course, affected the operation of the schools by the county, and I again say, I do not think, or we felt that the county was not capable of putting the monies in and the effort and the leadership into a system that would effectively make a unitary system work . . . ," 309 F. Supp., at 680. I cannot view this kind of consideration of race as discriminatory or even objectionable. The same doubts about the county's commitment to the operation of a high-quality unitary system would have come into play even if the racial composition of Emporia were precisely the same as that of the entire county area, including Emporia. Nor is this a case where we can presume a discriminatory purpose from an obviously discriminatory effect. Cf. Gomillion v. Lightfoot, 364 U.S. 339 (1960). We are not confronted with an awkward gerrymander or striking shift in racial proportions. The modest difference between the racial composition of Emporia's proposed separate school system and that of the county as a whole affords no basis for an inference of racial motivation. And while it seems that the more cumbersome features of the District Court's plan hastened the city's inevitable decision to operate a separate unitary school system, this was not because of any desire to manipulate the racial balance of its schools. Read as a whole, this record suggests that the District Court, acting before our decision in Swann, was reaching for some hypothetical perfection in racial balance, rather than the elimination of a dual school system. To put it in the simplest terms, the Court, in adopting the District Court's approach, goes too far.

If it appeared that the city of Emporia's operation of a separate school system would either perpetuate racial segregation in the schools of the Greensville County area or otherwise frustrate the dismantling of the dual system in that area, I would unhesitatingly join in reveing the judgment of the Court of Appeals and reinstating the judgment of the District Court. However, I do not believe the record supports such findings and can only conclude that the District Court abused its discretion in preventing Emporia from exercising its lawful right to provide for the education of its own children. By accepting the District Court's conclusion that Emporia's operation of its own schools would "impede the dismantling of the dual system," the Court necessarily implies that the result of the severance would be something less than unitary schools, and that segregated education would peist in some measure in the classrooms of the Greensville County area. The Court does not articulate the standard by which it reaches this conclusion, and its result far exceeds the contemplation of and all succeeding cases, including If the severance of the two systems were permitted to proceed, the assignment of children to schools would depend solely on their residence. County residents would attend county schools, and city residents would attend city schools. Assignment to schools would in no sense *472 depend on race. Such a geographic assignment pattern is prima facie consistent with the Equal Protection Clause. See aff'd, However, where a school system has been operated on a segregated basis in the past, and where ostensibly neutral attendance zones or district lines are drawn where none have existed before, we do not close our eyes to the facts in favor of theory. In the Court ruled that dual school systems must cease to exist in an objective sense as well as under the law. It was apparent that under the freedom-of-choice plan before the Court in Green, the mere elimination of mandatory segregation had provided no meaningful remedy. Green imposed on school boards the responsibility to "fashion steps which promise realistically to convert promptly to a system without a `white' school and a `Negro' school, but just schools." That, I believe, is precisely what would result if Emporia were permitted to operate its own school system— schools neither Negro nor white, "but just schools." As separate systems, both Emporia and Greensville County would have a majority of Negro students, the former slightly more than half, the latter slightly more than two-thirds. In the words of the Court of Appeals, "[t]he Emporia city unit would not be a white island in an otherwise black county." Moreover, the Negro majority in the remaining county system would only slightly exceed that of the entire county area including Emporia. It is undisputed that education would be conducted on a completely desegregated basis within the separate systems. Thus, the situation would in no sense be comparable to that where the creation of attendance zones within a single formerly segregated school system leaves an inordinate number *473 of one-race schools, such as were found in Rather than perpetuating a dual system, I believe the proposed arrangement would completely eliminate all traces of state-imposed segregation. It is quite true that the racial ratios of the two school systems would differ, but the elimination of such disparities is not the mission of desegregation. We stated in : "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to revee. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." It can no more be said that racial balance is the norm to be sought, than it can be said that mere racial imbalance was the condition requiring a judicial remedy. The pointlessness of such a "racial balancing" approach is well illustrated by the facts of this case. The District Court and the petitione have placed great emphasis on the estimated six-percent increase in the proportion of Negro students in the county schools that would result from Emporia's withdrawal. I do not see how a difference of one or two children per class[1] would even be noticed, let alone how it would render *474 a school part of a dual system. We have seen that the normal movement of populations could bring about such shifts in a relatively short period of time. Obsession with such minor statistical differences reflects the gravely mistaken view that a plan providing more consistent racial ratios is somehow more unitary than one which tolerates a lack of racial balance. Since the goal is to dismantle dual school systems rather than to reproduce in each classroom a microcosmic reflection of the racial proportions of a given geographical area, there is no basis for saying that a plan providing a uniform racial balance is more effective or constitutionally preferred. School authorities may wish to puue that goal as a matter of policy, but we have made it plain that it is not constitutionally mandated. See The Court disavows a "racial balancing" approach, and seeks to justify the District Court's ruling by relying on several additional facto thought to aggravate the effect of the racial disparity. The real significance of these additional facto is so negligible as to suggest that the racial imbalance itself may be what the Court finds most unacceptable. Fit, the Court raises the specter of resegregation resulting from the operation of separate school systems in the county area, but on the record in this case this is, at best, highly speculative. The Court suggests two reasons why such an additional racial shift could be anticipated with the existence of a separate school system for Emporia: white students residing in the county might abandon the public schools in favor of private academies, and white students residing in the city might leave private schools and enroll in the city school. In assessing these projections it is necessary to compare the nature of the proposed separate systems with *475 that of the court-ordered "pairing" system. Thus the fit possibility, that white students from the county might enter private schools, assumes that white families would be more likely to withdraw their children from public schools that are 72% Negro than from those that are 66% Negro. At most, any such difference would be marginal, and in fact it seems highly improbable that there would be any difference at all. The second possibility postulated by the Court seems equally unlikely; it assumes that families from the city who had previously withdrawn their children from the public schools due to impending desegregation, would return their children to public schools having more Negro than white pupils. The Court does not mention the possibility of some form of mass migration of white families into the city from the outlying county. Of coue, when there are adjoining school districts differing in their racial compositions, it is always conceivable that the differences will be accentuated by the so-called "white flight" phenomenon. But that danger seems remote in a situation such as this where there is a predominantly Negro population throughout the entire area of concern. Second, the Court attaches significance to the fact that the school buildings located in the county were formerly used as all-Negro schools and intimates that these facilities are of generally poorer quality than those in the city. But the District Court made no such finding of fact, and the record does not support the Court's suggestion on this point. Admittedly, some dissatisfaction was expressed with the sites of the elementary schools in the county, and only the city elementary school has an auditorium. However, all three elementary schools located in the county are more modern than any school building located in the city, and the county and city high school buildings are identical in every respect. *476 On a fair reading of the entire record, it can only be said that any differences between the educational facilities located in the city and those in the county are de minimis. Finally, the Court states that the process of desegregation would be impeded by the "advee psychological effect" that a separate city system would have on Negro students in the county. Here, again, the Court seeks to justify the District Court's discretionary action by reliance on a factor never considered by that court. More important, it surpasses the bounds of reason to equate the psychological impact of creating adjoining unitary school systems, both having Negro majorities, with the feelings of inferiority referred to in Brown I as engendered by a segregated school system. In Brown I the Court emphasized that the legal policy of separating children in schools solely according to their race inevitably generates a sense of inferiority. These observations were supported by common human experience and reinforced by psychological authority. Here the Court seeks to make a similar judgment in a setting where no child is accorded differing treatment on the basis of race. This wholly speculative observation by the Court is supported neither by common experience nor by scientific authority. Even giving maximum rational weight to all of the facto mentioned by the Court, I cannot conclude that separate systems for Emporia and Greensville County would be anything less than fully unitary and nonracial. The foundation and supetructure of the dual system would be dissolved, and the result would not factually preserve the separation of races that existed in the past. We noted in Swann "that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law." 402 *. This reflects our consistent emphasis on the elimination of the discriminatory systems, rather than on mere numbe in particular schools. The proposed systems here would retain no "one-race, or virtually one-race schools," but more important, all vestiges of the discriminatory system would be removed. That is all the Constitution commands. It is argued that even if Emporia's operation of its own unitary school system would have been constitutionally permissible, it was nevertheless within the equitable discretion of the District Court to insist on a "more effective" plan of desegregation in the form of a county-wide school system. In the Court fit conferred on the district courts the responsibility to enforce the desegregation of the schools, if school authorities failed to do so, according to equitable remedial principles. While we have emphasized the flexibility of the power of district courts in this process, the invocation of remedial jurisdiction is not equivalent to having a school district placed in receivehip. It has been implicit in all of our decisions from Brown II to Swann, that if local authorities devise a plan that will effectively eliminate segregation in the schools, a district court must accept such a plan unless there are strong reasons why a different plan is to be preferred. A local school board plan that will eliminate dual schools, stop discrimination, and improve the quality of education ought not be cast aside because a judge can evolve some other plan that accomplishes the same result, or what he conside a preferable result, with a two percent, four percent, or six percent difference in racial composition. Such an approach gives controlling weight to sociological theories, not constitutional doctrine. This limitation on the discretion of the district courts involves more than polite deference to the role of local *478 governments. Local control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well. The success of any school system depends on a vast range of facto that lie beyond the competence and power of the courts. Curricular decisions, the structuring of grade levels, the planning of extracurricular activities, to mention a few, are matte lying solely within the province of school officials, who maintain a day-to-day supervision that a judge cannot. A plan devised by school officials is apt to be attuned to these highly relevant educational goals; a plan deemed preferable in the abstract by a judge might well overlook and thus undermine these primary concerns. The discretion of a district court is further limited where, as here, it deals with totally separate political entities. This is a very different case from one where a school board proposes attendance zones within a single school district or even one where a school district is newly formed within a county unit. Under Virginia law, Emporia is as independent from Greensville County as one State is from another. See City of ; This may be an anomaly in municipal jurisprudence, but it is Virginia's anomaly; it is of ancient origin, and it is not forbidden by the Constitution. To bar the city of Emporia from operating its own school system is to strip it of its most important governmental responsibility, and thus largely to deny its existence as an independent governmental entity. It is a serious step and, absent the facto that peuade me to the contrary in Scotland Neck,[2] decided today, I am unwilling to go that far. *479 Although the rights and powe of a bona fide political entity may not be used as a cloak for evasive action, neither can those powe be nullified by judicial intervention to achieve a unitary system in a particular way. When a plan devised by local authorities crosses the threshold of achieving actual desegregation, it is not for the district courts to ovetep local prerogatives and insist on some other alternative. Judicial power ends when a dual school system has ceased to exist. Since Emporia's operation of a separate school system would not compromise the goal of eliminating dual schools, there is no basis for requiring Emporia to demonstrate the necessity of its decision. The "heavy burden" test referred to in Green applies only where there is serious reason to doubt the efficacy of a school board's plan as a means of achieving desegregation, and there is no basis for such doubt here. Nonetheless, the Court's treatment of Emporia's reasons for establishing a separate system merits comment. The Court makes light of Emporia's desire to create a high-quality, unitary school system for the children of its citizens. In so doing, the Court disregards the following explicit finding of the District Court: "The city clearly contemplates a superior quality educational program. It is anticipated that the cost will be such as to require higher tax payments by city residents. A kindergarten program, ungraded primary levels, health services, adult education, and a low pupil-teacher ratio are included in the plan" Furthermore, the Court suggests that if Emporia were in fact to provide the top-flight educational program the District Judge anticipated, it could only woen the quality of education in the remaining county schools. To be sure, there was cause for concern over the relative quality of education offered in the county schools; *480 as the District Court observed, county officials did "not embrace the court-ordered unitary plan with enthusiasm." The record shows that prior to the 1969-1970 school year, per-pupil expenditures in Greensville County lagged behind the state median, and that the increase in the county school budget for the 1969-1970 school year was insufficient to keep abreast of inflation, not to mention increased transportation costs. But the city of Emporia was in no position to alleviate this problem for the county. The county had previously refused to allow the city to participate in joint administration of the schools, and the city had absolutely no power to affect the level of funding for the county schools. Under the contract, Emporia was the purchaser of whatever educational services the county had to offer. Out of undetandable concern for the quality of these services, it sought to alter the contractual arrangement in order to provide better unitary schools. There is no basis on this record for assuming that the quality of education in the county schools was likely to suffer further due to Emporia's withdrawal. The Court relies on the District Court's finding that "the desire of the city leade, coupled with their obvious leadehip ability, is and will be an important facet in the successful operation of any court-ordered plan." The District Court made this finding despite the fact that the county had refused to administer the schools jointly with the city, and despite uncontradicted evidence that there was no line of communications between the city and county governments, that the city government had been unable to get any cooperation from the county government, and that there was an atmosphere of active antagonism between the two governments. With all deference to the trier of fact, I cannot accept this finding as supported by evidence in the record of this case. It appea that the District Court wanted *481 that "obvious leadehip ability" of Emporia's citizens to exert its influence on the more reluctant leadehip in the county. This is a laudable goal in the abstract, but the courts must adjust their remedies to the facts of each case as they bear on the central problem of eliminating a dual system. Although acknowledging Emporia's need to have some "[d]irect control over decisions vitally affecting the education of [its] children," the Court states that since Emporia found the contractual arrangement tolerable prior to 1969, it should not now be heard to complain. However, the city did not enter that contract of its own free choice. From the time Emporia became a city, consideration was given to the formation of a separate school system, and it was at least thought necessary that the city participate in administration of the county school system. After the county rejected the city's proposal for joint administration, the county threatened to terminate educational services for city children unless the city entered an agreement by April 30, 1968. Only then— under virtual duress—did the city submit to the contractual arrangement. It was not until June 1969 that the city was advised by its counsel that the agreement might be illegal. Steps were then taken to terminate the strained relationship. Recognizing the tensions inherent in a contractual arrangement put together under these conditions, the Court indicates that Emporia might be permitted to operate a separate school system at some future time. The Court does not explain how the passage of time will substantially alter the situation that existed at the time the District Court entered its injunction. If, as the Court states, desegregation in the county was destined to fail if Emporia established its own school system in 1969, it is difficult to undetand why it would not be an undue risk to allow separation in the future. *482 The more realistic view is that there was never such a danger, and that the District Court had no cause to disregard Emporia's desire to free itself from its ties to Greensville County. However, even on the Court's terms, I assume that Emporia could go back to the District Court tomorrow and renew its request to operate a separate system. The county-wide plan has been in effect for the past three yea, and the city should now be relieved of the court-imposed duty to purchase whatever quality of education the county sees fit to provide. Finally, some discussion is warranted of the relevance of discriminatory purpose in cases such as these. It is, of coue, correct that "[t]he measure of any desegregation plan is its effectiveness," and that a plan that stops short of dismantling a dual school system cannot be redeemed by benevolent motives. But it is also true that even where a dual system has in fact been dismantled, as it plainly has been in Emporia, we must still be alert to make sure that ostensibly nondiscriminatory actions are not designed to exclude children from schools because of their race. We are well aware that the progress of school desegregation since 1954 has been hampered by peistent resistance and evasion in many places. Thus, the normal judicial reluctance to probe the motives or purposes underlying official acts must yield to the realities in this very sensitive area of constitutional adjudication. Compare with There is no basis for concluding, on this record, that Emporia's decision to operate a separate school system was the manifestation of a discriminatory purpose. The strongest finding made by the District Court was that race was "in a sense" a factor in the city's decision; read in context, this ambiguous finding does not relate to any *483 invidious consideration of race. The District Court relied solely on the following testimony of the chairman of the city school board: "Race, of coue, affected the operation of the schools by the county, and I again say, I do not think, or we felt that the county was not capable of putting the monies in and the effort and the leadehip into a system that would effectively make a unitary system work" I cannot view this kind of consideration of race as discriminatory or even objectionable. The same doubts about the county's commitment to the operation of a high-quality unitary system would have come into play even if the racial composition of Emporia were precisely the same as that of the entire county area, including Emporia. Nor is this a case where we can presume a discriminatory purpose from an obviously discriminatory effect. Cf. We are not confronted with an awkward gerrymander or striking shift in racial proportions. The modest difference between the racial composition of Emporia's proposed separate school system and that of the county as a whole affords no basis for an inference of racial motivation. And while it seems that the more cumbeome features of the District Court's plan hastened the city's inevitable decision to operate a separate unitary school system, this was not because of any desire to manipulate the racial balance of its schools. Read as a whole, this record suggests that the District Court, acting before our decision in Swann, was reaching for some hypothetical perfection in racial balance, rather than the elimination of a dual school system. To put it in the simplest terms, the Court, in adopting the District Court's approach, goes too far.

per_curiam

per_curiam

Pennsylvania v. Goldhammer

https://www.courtlistener.com/opinion/111537/pennsylvania-v-goldhammer/

https://www.courtlistener.com/api/rest/v3/clusters/111537/

1985-006

The Supreme Court of Pennsylvania held below that the Double Jeopardy Clause of the Fifth Amendment of the *29 United States Constitution barred the resentencing of respondent. 507 Pa. 236, 489 A.2d 1307 (1985). We grant certiorari, and, on the basis of our decision in United States v. DiFrancesco, 449 U.S. 117 (1980), we reverse and remand. The motion of respondent for leave to proceed in forma pauperis is granted. Respondent was convicted in the Philadelphia Court of Common Pleas on 56 counts of forgery and 56 counts of theft. He was sentenced by the trial court to two-to-five years of imprisonment on a single theft count and five years of probation on one of the forgery counts. Sentence was suspended on the remaining counts. Respondent appealed all 112 convictions to the Superior Court of Pennsylvania. That court ruled that the statute of limitations barred the prosecution of 34 of the theft counts, including the count on which respondent had received his sentence of imprisonment. On appeal by the Commonwealth, the Supreme Court of Pennsylvania affirmed the Superior Court's ruling on the statute of limitations. In addition, the Supreme Court of Pennsylvania denied petitioner's request that the case be remanded to the trial court for resentencing on the remaining 22 theft counts. The court acknowledged that a defendant could be twice sentenced for the same count when there was an intervening retrial at the request of the defendant, but it held that resentencing on the counts which were affirmed after an appeal by the Commonwealth is barred by the Double Jeopardy Clause when the sentence of imprisonment on another count is vacated. 507 Pa., at 248-251, 489 A. 2d, at 1314-1315, citing North Carolina v. Pearce, 395 U.S. 711 (1969). The Pennsylvania Supreme Court's rationale is inconsistent with the rationale of the holding of this Court in DiFrancesco, supra. In DiFrancesco we upheld the constitutionality of 18 U.S. C. § 3576, which allows the United States to appeal to the court of appeals the sentence given a "dangerous special offender" by a district court, and allows the court *30 of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings. We noted that the decisions of this Court "clearly establish that a sentenc[ing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal." DiFrancesco, supra, at 134. In North Carolina v. Pearce, supra, we held that a court could sentence a defendant on retrial more severely than after the first trial. Any distinction between the situation in Pearce and that in DiFrancesco is "no more than a `conceptual nicety.' " DiFrancesco, supra, at 136 (quoting Pearce, supra, at 722). Indeed, a resentencing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after retrial: "[T]he basic design of the double jeopardy provision [is to] bar . . . repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution's statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence." DiFrancesco, supra, at 136. In DiFrancesco a federal statute clearly allowed the appellate review of the sentences at issue. The Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original sentencing. 449 U.S., at 136, 139. Here, because the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the *31 case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of DiFrancesco, supra. Reversed and remanded. JUSTICE BRENNAN dissents from summary disposition and would vote to deny the petition. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U.S. 111, 120-121 (1983) (MARSHALL, J., dissenting); Wyrick v. Fields, 459 U.S. 42, 51-52 (1982) (MARSHALL, J., dissenting). JUSTICE BLACKMUN would grant the petition and set the case for argument.

The Supreme Court of Pennsylvania held below that the Double Jeopardy Clause of the Fifth Amendment of the *29 United States Constitution barred the resentencing of respondent. We grant certiorari, and, on the basis of our decision in United we reverse and remand. The motion of respondent for leave to proceed in forma pauperis is granted. Respondent was convicted in the Philadelphia Court of Common Pleas on 56 counts of forgery and 56 counts of theft. He was sentenced by the trial court to two-to-five years of imprisonment on a single theft count and five years of probation on one of the forgery counts. Sentence was suspended on the remaining counts. Respondent appealed all 112 convictions to the Superior Court of Pennsylvania. That court ruled that the statute of limitations barred the prosecution of 34 of the theft counts, including the count on which respondent had received his sentence of imprisonment. On appeal by the Commonwealth, the Supreme Court of Pennsylvania affirmed the Superior Court's ruling on the statute of limitations. In addition, the Supreme Court of Pennsylvania denied petitioner's request that the case be remanded to the trial court for resentencing on the remaining 22 theft counts. The court acknowledged that a defendant could be twice sentenced for the same count when there was an intervening retrial at the request of the defendant, but it held that resentencing on the counts which were affirmed after an appeal by the Commonwealth is barred by the Double Jeopardy Clause when the sentence of imprisonment on another count is -1315, citing North The Pennsylvania Supreme Court's rationale is inconsistent with the rationale of the holding of this Court in In we upheld the constitutionality of 18 U.S. C. 3576, which allows the United States to appeal to the court of appeals the sentence given a "dangerous special offender" by a district court, and allows the court *30 of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings. We noted that the decisions of this Court "clearly establish that a sentenc[ing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal." In North we held that a court could sentence a defendant on retrial more severely than after the first trial. Any distinction between the situation in and that in is "no more than a `conceptual nicety.' " (quoting ). Indeed, a resentencing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after retrial: "[T]he basic design of the double jeopardy provision [is to] bar repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution's statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence." In a federal statute clearly allowed the appellate review of the sentences at issue. The Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original 449 U.S., 139. Here, because the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the *31 case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of Reversed and remanded. JUSTICE BRENNAN dissents from summary disposition and would vote to deny the petition. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See ; JUSTICE BLACKMUN would grant the petition and set the case for argument.

Justice Stevens

majority

Beneficial Nat. Bank v. Anderson

https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/

https://www.courtlistener.com/api/rest/v3/clusters/130139/

2002-062

The question in this case is whether an action filed in a state court to recover damages from a national bank for allegedly charging excessive interest in violation of both "the common law usury doctrine" and an Alabama usury statute *4 may be removed to a federal court because it actually arises under federal law. We hold that it may. I Respondents are 26 individual taxpayers who made pledges of their anticipated tax refunds to secure short-term loans obtained from petitioner Beneficial National Bank, a national bank chartered under the National Bank Act. Respondents brought suit in an Alabama court against the bank and the two other petitioners that arranged the loans, seeking compensatory and punitive damages on the theory, among others, that the bank's interest rates were usurious. App. 18-30. Their complaint did not refer to any federal law. Petitioners removed the case to the United States District Court for the Middle District of Alabama. In their notice of removal they asserted that the National Bank Act, Rev. Stat. § 5197, as amended, 12 U.S. C. § 85,[1] is the exclusive provision *5 governing the rate of interest that a national bank may lawfully charge, that the rates charged to respondents complied with that provision, that Rev. Stat. § 5198, 12 U.S. C. § 86, provides the exclusive remedies available against a national bank charging excessive interest,[2] and that the removal statute, 28 U.S. C. § 1441, therefore applied. App. 31-35. The District Court denied respondents' motion to remand the case to state court but certified the question whether it had jurisdiction to proceed with the case to the Court of Appeals pursuant to 28 U.S. C. § 1292(b). A divided panel of the Eleventh Circuit reversed. Anderson v. H&R Block, Inc., 287 F.3d 1038 (2002). The majority held that under our "well-pleaded complaint" rule, removal is generally not permitted unless the complaint expressly alleges a federal claim and that the narrow exception from that rule known as the "complete preemption doctrine" did not apply because it could "find no clear congressional intent to permit removal under §§ 85 and 86." Id., at 1048. Because this holding conflicted with an Eighth Circuit decision, Krispin *6 v. May Dept. Stores Co., 218 F.3d 919 (2000), we granted certiorari. 537 U.S. 1169 (2003). II A civil action filed in a state court may be removed to federal court if the claim is one "arising under" federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the "well pleaded" allegations of the complaint and ignore potential defenses: "[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States." Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); see Taylor v. Anderson, 234 U.S. 74 (1914). Thus, a defense that relies on the preclusive effect of a prior federal judgment, Rivet v. Regions Bank of La., 522 U.S. 470 (1998), or the pre-emptive effect of a federal statute, Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1 (1983), will not provide a basis for removal. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Congress has, however, created certain exceptions to that rule. For example, the Price-Anderson Act contains an unusual pre-emption provision, 42 U.S. C. § 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484-485 (1999). We have also construed § 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S. C. § 185, as not only pre-empting state law but also authorizing removal of actions *7 that sought relief only under state law. Avco Corp. v. Machinists, 390 U.S. 557 (1968). We later explained that holding as resting on the unusually "powerful" pre-emptive force of § 301: "The Court of Appeals held, 376 F.2d, at 340, and we affirmed, 390 U.S., at 560, that the petitioner's action `arose under' § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Franchise Tax Bd., 463 U. S., at 23-24 (footnote omitted). Similarly, in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), we considered whether the "complete preemption" approach adopted in Avco also supported the removal of state common-law causes of action asserting improper processing of benefit claims under a plan regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. § 1001 et seq. For two reasons, we held that removal was proper even though the complaint purported to raise only state-law claims. First, the statutory text in § 502(a), 29 U.S. C. § 1132, not only provided an express federal remedy for the plaintiffs' claims, but also in its jurisdiction subsection, § 502(f), used language similar to the statutory language construed in Avco, thereby indicating *8 that the two statutes should be construed in the same way. 481 U.S., at 65. Second, the legislative history of ERISA unambiguously described an intent to treat such actions "as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947." Id., at 65-66 (internal quotation marks and emphasis omitted). Thus, a state claim may be removed to federal court in only two circumstances—when Congress expressly so provides, such as in the Price-Anderson Act, supra, at 6, or when a federal statute wholly displaces the state-law cause of action through complete pre-emption.[3] When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U.S. C. § 1441(b), which authorizes any claim that "arises under" federal law to be removed to federal court. In the two categories of cases[4] where this Court has found complete preemption—certain causes of action under the LMRA and ERISA—the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U.S. C. § 1132 (setting forth procedures and remedies for civil claims under ERISA); § 185 (describing procedures and remedies for suits under the LMRA). *9 III Count IV of respondents' complaint sought relief for "usury violations" and claimed that petitioners "charged . . . excessive interest in violation of the common law usury doctrine" and violated "Alabama Code § 8-8-1, et seq. by charging excessive interest." App. 28. Respondents' complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case: Does the National Bank Act provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate § 85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that we construed in the Avco and Metropolitan Life cases.[5] *10 In a series of cases decided shortly after the Act was passed, we endorsed that approach. In Farmers' and Mechanics' Nat. Bank v. Dearing, 91 U.S. 29, 32-33 (1875), we rejected the borrower's attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of §§ 85 and 86 "form a system of regulations . . . [a]ll the parts [of which] are in harmony with each other and cover the entire subject," so that "the State law would have no bearing whatever upon the case." We also observed that "[i]n any view that can be taken of [§ 86], the power to supplement it by State legislation is conferred neither expressly nor by implication." Id., at 35. In Evans v. National Bank of Savannah, 251 U.S. 108, 114 (1919), we stated that "federal law . . . completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum permitted rate." See also Barnet v. National Bank, 98 U.S. 555, 558 (1879) (The "statutes of Ohio and Indiana upon the subject of usury . . . cannot affect the case" because the Act "creates a new right" that is "exclusive"); Haseltine v. Central Bank of Springfield, 183 U.S. 132, 134 (1901) ("[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking Act and not by the law of the State"). In addition to this Court's longstanding and consistent construction of the National Bank Act as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from "possible unfriendly State legislation." Tiffany v. National Bank of Mo., 18 Wall. 409, 412 *11 (1874). The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized as the "power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§ 85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under § 1441. The judgment of the Court of Appeals is reversed. It is so ordered.

The question in this case is whether an action filed in a state court to recover damages from a national bank for allegedly charging excessive interest in violation of both "the common law usury doctrine" and an Alabama usury statute *4 may be removed to a federal court because it actually arises under federal law. We hold that it may. I Respondents are 26 individual taxpayers who made pledges of their anticipated tax refunds to secure short-term loans obtained from petitioner Beneficial National Bank, a national bank chartered under the National Bank Respondents brought suit in an Alabama court against the bank and the two other petitioners that arranged the loans, seeking compensatory and punitive damages on the theory, among others, that the bank's interest rates were usurious. App. 18-30. Their complaint did not refer to any federal law. Petitioners removed the case to the United States District Court for the Middle District of Alabama. In their notice of removal they asserted that the National Bank Rev. Stat. 5197, as amended, 12 U.S. C. 85,[1] is the exclusive provision *5 governing the rate of interest that a national bank may lawfully charge, that the rates charged to respondents complied with that provision, that Rev. Stat. 5198, 12 U.S. C. 86, provides the exclusive remedies available against a national bank charging excessive interest,[2] and that the removal statute, 28 U.S. C. 1441, therefore applied. App. 31-35. The District Court denied respondents' motion to remand the case to state court but certified the question whether it had jurisdiction to proceed with the case to the Court of Appeals pursuant to 28 U.S. C. 1292(b). A divided panel of the Eleventh Circuit reversed. The majority that under our "well-pleaded complaint" rule, removal is generally not permitted unless the complaint expressly alleges a federal claim and that the narrow exception from that rule known as the "complete preemption doctrine" did not apply because it could "find no clear congressional intent to permit removal under 85 and 86." Because this holding conflicted with an Eighth Circuit decision, Krispin we granted certiorari. II A civil action filed in a state court may be removed to federal court if the claim is one "arising under" federal law. 1441(b). To determine whether the claim arises under federal law, we examine the "well pleaded" allegations of the complaint and ignore potential defenses: "[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States." Louisville & Nashville R. ; see Thus, a defense that relies on the preclusive effect of a prior federal judgment, or the pre-emptive effect of a federal statute, Franchise Tax of will not provide a basis for removal. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Congress has, however, created certain exceptions to that rule. For example, the Price-Anderson contains an unusual pre-emption provision, 42 U.S. C. 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims. See El Paso Natural Gas We have also construed 301 of the Labor Management Relations 1947 (LMRA), 29 U.S. C. 185, as not only pre-empting state law but also authorizing removal of actions *7 that sought relief only under state law. Avco We later explained that holding as resting on the unusually "powerful" pre-emptive force of 301: "The Court of Appeals and we affirmed, that the petitioner's action `arose under' 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Franchise Tax -24 Similarly, in Metropolitan Life Ins. we considered whether the "complete preemption" approach adopted in Avco also supported the removal of state common-law causes of action asserting improper processing of benefit claims under a plan regulated by the Employee Retirement Income Security of 1974 (ERISA), 29 U.S. C. 1001 et seq. For two reasons, we that removal was proper even though the complaint purported to raise only state-law claims. First, the statutory text in 502(a), 29 U.S. C. 1132, not only provided an express federal remedy for the plaintiffs' claims, but also in its jurisdiction subsection, 502(f), used language similar to the statutory language construed in Avco, thereby indicating *8 that the two statutes should be construed in the same Second, the legislative history of ERISA unambiguously described an intent to treat such actions "as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations of 1947." Thus, a state claim may be removed to federal court in only two circumstances—when Congress expressly so provides, such as in the Price-Anderson or when a federal statute wholly displaces the state-law cause of action through complete pre-emption.[3] When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U.S. C. 1441(b), which authorizes any claim that "arises under" federal law to be removed to federal court. In the two categories of cases[4] where this Court has found complete preemption—certain causes of action under the LMRA and ERISA—the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U.S. C. 1132 (setting forth procedures and remedies for civil claims under ERISA); 185 (describing procedures and remedies for suits under the LMRA). *9 III Count IV of respondents' complaint sought relief for "usury violations" and claimed that petitioners "charged excessive interest in violation of the common law usury doctrine" and violated "Alabama Code 8-8-1, et seq. by charging excessive interest." App. 28. Respondents' complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case: Does the National Bank provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate 85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Only if Congress intended 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that we construed in the Avco and Metropolitan Life cases.[5] *10 In a series of cases decided shortly after the was passed, we endorsed that approach. In Farmers' and Mechanics' Nat. we rejected the borrower's attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of 85 and 86 "form a system of regulations [a]ll the parts [of which] are in harmony with each other and cover the entire subject," so that "the State law would have no bearing whatever upon the case." We also observed that "[i]n any view that can be taken of [ 86], the power to supplement it by State legislation is conferred neither expressly nor by implication." In we stated that "federal law completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum permitted rate." See also (The "statutes of Ohio and Indiana upon the subject of usury cannot affect the case" because the "creates a new right" that is "exclusive"); ("[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking and not by the law of the State"). In addition to this Court's longstanding and consistent construction of the National Bank as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from "possible unfriendly State legislation." The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized as the "power to destroy," supports the established interpretation of 85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under 1441. The judgment of the Court of Appeals is reversed. It is so ordered.

Justice White

majority

At&T Technologies, Inc. v. Communications Workers

https://www.courtlistener.com/opinion/111623/att-technologies-inc-v-communications-workers/

https://www.courtlistener.com/api/rest/v3/clusters/111623/

1985-060

The issue presented in this case is whether a court asked to order arbitration of a grievance filed under a collective-bargaining agreement must first determine that the parties intended to arbitrate the dispute, or whether that determination is properly left to the arbitrator. I AT&T Technologies, Inc. (AT&T or the Company), and the Communications Workers of America (the Union) are parties to a collective-bargaining agreement which covers telephone equipment installation workers. Article 8 of this agreement *645 establishes that "differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder" must be referred to a mutually agreeable arbitrator upon the written demand of either party. This Article expressly does not cover disputes "excluded from arbitration by other provisions of this contract."[1] Article 9 provides that, "subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause," AT&T is free to exercise certain management functions, including the hiring and placement of employees and the termination of employment.[2] "When lack of work necessitates Layoff," Article 20 prescribes the order in which employees are to be laid off.[3] On September 17, 1981, the Union filed a grievance challenging AT&T's decision to lay off 79 installers from its Chicago base location. The Union claimed that, because there was no lack of work at the Chicago location, the *646 planned layoffs would violate Article 20 of the agreement. Eight days later, however, AT&T laid off all 79 workers, and soon thereafter, the Company transferred approximately the same number of installers from base locations in Indiana and Wisconsin to the Chicago base. AT&T refused to submit the grievance to arbitration on the ground that under Article 9 the Company's decision to lay off workers when it determines that a lack of work exists in a facility is not arbitrable. The Union then sought to compel arbitration by filing suit in federal court pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S. C. § 185(a).[4]Communications Workers of America v. Western Electric Co., No. 82 C 772 (ND Ill., Nov. 18, 1983). Ruling on cross-motions for summary judgment, the District Court reviewed the provisions of Articles 8, 9, and 20, and set forth the parties' arguments as follows: "Plaintiffs interpret Article 20 to require that there be an actual lack of work prior to employee layoffs and argue that there was no such lack of work in this case. Under plaintiffs' interpretation, Article 20 would allow the union to take to arbitration the threshold issue of whether the layoffs were justified by a lack of work. Defendant interprets Article 20 as merely providing a sequence for any layoffs which management, in its exclusive judgment, determines are necessary. Under defendant's interpretation, Article 20 would not allow for an arbitrator to decide whether the layoffs were warranted by a lack of work but only whether the company *647 followed the proper order in laying off the employees." App. to Pet. for Cert. 10A. Finding that "the union's interpretation of Article 20 was at least `arguable,' " the court held that it was "for the arbitrator, not the court to decide whether the union's interpretation has merit," and accordingly, ordered the Company to arbitrate. Id., at 11A. The Court of Appeals for the Seventh Circuit affirmed. Communications Workers of America v. Western Electric Co., 751 F.2d 203 (1984). The Court of Appeals understood the District Court to have ordered arbitration of the threshold issue of arbitrability. Id., at 205, n. 4. The court acknowledged the "general rule" that the issue of arbitrability is for the courts to decide unless the parties stipulate otherwise, but noted that this Court's decisions in Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), and Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960), caution courts to avoid becoming entangled in the merits of a labor dispute under the guise of deciding arbitrability. From this observation, the court announced an "exception" to the general rule, under which "a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute." 751 F.2d, at 206. All of these factors were present in this case. Article 8 was a "standard arbitration clause," and there was "no clear, unambiguous exclusion from arbitration of terminations predicated by a lack of work determination." Id., at 206-207. Moreover, although there were "colorable arguments" on both sides of the exclusion issue, if the court were to decide this question it would have to interpret not only Article 8, but Articles 9 and 20 as well, both of which are "substantive *648 provisions of the Agreement." The court thus "decline[d] the invitation to decide arbitrability," and ordered AT&T "to arbitrate the arbitrability issue." Id., at 207. The court admitted that its exception was "difficult to reconcile with the Supreme Court's discussion of a court's duty to decide arbitrability in [John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964)]." The court asserted, however, that the discussion was "dicta," and that this Court had reopened the issue in Nolde Brothers, Inc. v. Bakery Workers, 430 U.S. 243, 255, n. 8 (1977). 751 F.2d, at 206. We granted certiorari, 474 U.S. 814 (1985), and now vacate the Seventh Circuit's decision and remand for a determination of whether the Company is required to arbitrate the Union's grievance. II The principles necessary to decide this case are not new. They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy: Steelworkers v. American Mfg. Co., supra; Steelworkers v. Warrior & Gulf Navigation Co., supra; and Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). These precepts have served the industrial relations community well, and have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of a collective-bargaining agreement. We see no reason either to question their continuing validity, or to eviscerate their meaning by creating an exception to their general applicability. The first principle gleaned from the Trilogy is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Warrior & Gulf, supra, at 582; American Mfg. Co., supra, at 570-571 (BRENNAN, J., concurring). This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to *649 arbitration. Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374 (1974). The second rule, which follows inexorably from the first, is that the question of arbitrability — whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance — is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. Warrior & Gulf, supra, at 582-583. See Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491 (1972); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 (1962), overruled in part on other grounds, Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 (1970). Accord, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). The Court expressly reaffirmed this principle in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964). The "threshold question" there was whether the court or an arbitrator should decide if arbitration provisions in a collective-bargaining contract survived a corporate merger so as to bind the surviving corporation. Id., at 546. The Court answered that there was "no doubt" that this question was for the courts. "Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.' . . . The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." Id., at 546-547 (citations omitted). The third principle derived from our prior cases is that, in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims. Whether "arguable" or not, indeed even if it appears to the court to be *650 frivolous, the union's claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious." American Mfg. Co., 363 U. S., at 568 (footnote omitted). Finally, it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that "[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Warrior & Gulf, 363 U. S., at 582-583. See also Gateway Coal Co. v. Mine Workers, supra, at 377-378. Such a presumption is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder . . . ." In such cases, "[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." Warrior & Gulf, supra, at 584-585. This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, "furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objectives in pursuing collective bargaining." Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 371-372 (1984) (citation *651 omitted). See Gateway Coal Co., supra, at 378-379. The willingness of parties to enter into agreements that provide for arbitration of specified disputes would be "drastically reduced," however, if a labor arbitrator had the "power to determine his own jurisdiction . . . ." Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1509 (1959). Were this the applicable rule, an arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered "to impose obligations outside the contract limited only by his understanding and conscience." Ibid. This result undercuts the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements, and is antithetical to the function of a collective-bargaining agreement as setting out the rights and duties of the parties. With these principles in mind, it is evident that the Seventh Circuit erred in ordering the parties to arbitrate the arbitrability question. It is the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by the Company. If the court determines that the agreement so provides, then it is for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement. It was for the court, not the arbitrator, to decide in the first instance whether the dispute was to be resolved through arbitration. The Union does not contest the application of these principles to the present case. Instead, it urges the Court to examine the specific provisions of the agreement for itself and to affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs at issue here. But it is usually not our function in the first instance to construe collective-bargaining contracts and arbitration clauses, or to consider any other evidence that might unmistakably demonstrate that a particular grievance was not to *652 be subject to arbitration. The issue in the case is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause. That issue should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator. The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings in conformity with this opinion. It is so ordered.

The issue presented in this case is whether a court asked to order arbitration of a grievance filed under a collective-bargaining agreement must first determine that the parties intended to arbitrate the dispute, or whether that determination is properly left to the arbitrator I AT&T Technologies, Inc (AT&T or the Company), and the Communications of America (the Union) are parties to a collective-bargaining agreement which covers telephone equipment installation workers Article 8 of this agreement *645 establishes that "differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder" must be referred to a mutually agreeable arbitrator upon the written demand of either party This Article expressly does not cover disputes "excluded from arbitration by other provisions of this contract"[1] Article 9 provides that, "subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause," AT&T is free to exercise certain management functions, including the hiring and placement of employees and the termination of employment[2] "When lack of work necessitates Layoff," Article 20 prescribes the order in which employees are to be laid off[3] On September 17, 1981, the Union filed a grievance challenging AT&T's decision to lay off 79 installers from its Chicago base location The Union claimed that, because there was no lack of work at the Chicago location, the *646 planned layoffs would violate Article 20 of the agreement Eight days later, however, AT&T laid off all 79 workers, and soon thereafter, the Company transferred approximately the same number of installers from base locations in Indiana and Wisconsin to the Chicago base AT&T refused to submit the grievance to arbitration on the ground that under Article 9 the Company's decision to lay off workers when it determines that a lack of work exists in a facility is not arbitrable The Union then sought to compel arbitration by filing suit in federal court pursuant to 301(a) of the Labor Management Relations Act, 29 US C 185(a)[4]Communications of No 82 C 772 (ND Ill, Nov 18, 1983) Ruling on cross-motions for summary judgment, the District Court reviewed the provisions of Articles 8, 9, and 20, and set forth the parties' arguments as follows: "Plaintiffs interpret Article 20 to require that there be an actual lack of work prior to employee layoffs and argue that there was no such lack of work in this case Under plaintiffs' interpretation, Article 20 would allow the union to take to arbitration the threshold issue of whether the layoffs were justified by a lack of work Defendant interprets Article 20 as merely providing a sequence for any layoffs which management, in its exclusive judgment, determines are necessary Under defendant's interpretation, Article 20 would not allow for an arbitrator to decide whether the layoffs were warranted by a lack of work but only whether the company *647 followed the proper order in laying off the employees" App to Pet for Cert 10A Finding that "the union's interpretation of Article 20 was at least `arguable,' " the court held that it was "for the arbitrator, not the court to decide whether the union's interpretation has merit," and accordingly, ordered the Company to arbitrate at 11A The Court of Appeals for the Seventh Circuit affirmed Communications of The Court of Appeals understood the District Court to have ordered arbitration of the threshold issue of arbitrability The court acknowledged the "general rule" that the issue of arbitrability is for the courts to decide unless the parties stipulate otherwise, but noted that this Court's decisions in and caution courts to avoid becoming entangled in the merits of a labor dispute under the guise of deciding arbitrability From this observation, the court announced an "exception" to the general rule, under which "a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute" All of these factors were present in this case Article 8 was a "standard arbitration clause," and there was "no clear, unambiguous exclusion from arbitration of terminations predicated by a lack of work determination" Moreover, although there were "colorable arguments" on both sides of the exclusion issue, if the court were to decide this question it would have to interpret not only Article 8, but Articles 9 and 20 as well, both of which are "substantive *648 provisions of the Agreement" The court thus "decline[d] the invitation to decide arbitrability," and ordered AT&T "to arbitrate the arbitrability issue" The court admitted that its exception was "difficult to reconcile with the Supreme Court's discussion of a court's duty to decide arbitrability in [John Wiley & Sons, ]" The court asserted, however, that the discussion was "dicta," and that this Court had reopened the issue in Nolde Brothers, We granted certiorari, 474 US 814 and now vacate the Seventh Circuit's decision and remand for a determination of whether the Company is required to arbitrate the Union's grievance II The principles necessary to decide this case are not new They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy: and Steelworkers v Enterprise Wheel & Car Corp, 363 US 593 These precepts have served the industrial relations community well, and have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of a collective-bargaining agreement We see no reason either to question their continuing validity, or to eviscerate their meaning by creating an exception to their general applicability The first principle gleaned from the Trilogy is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit" Warrior & ; American Mfg Co, (BRENNAN, J, concurring) This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to *649 arbitration Gateway Coal Co v Mine 414 US 368, The second rule, which follows inexorably from the first, is that the question of arbitrability — whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance — is undeniably an issue for judicial determination Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator Warrior & -583 See Operating Engineers v Flair Builders, Inc, 406 US 487, ; Atkinson v Sinclair Refining Co, 370 US 238, overruled in part on other grounds, Boys Markets, Inc v Retail Clerks, 398 US 235 Accord, Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, The Court expressly reaffirmed this principle in John Wiley & Sons, The "threshold question" there was whether the court or an arbitrator should decide if arbitration provisions in a collective-bargaining contract survived a corporate merger so as to bind the surviving corporation The Court answered that there was "no doubt" that this question was for the courts "Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties' The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty" -547 The third principle derived from our prior cases is that, in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims Whether "arguable" or not, indeed even if it appears to the court to be *650 frivolous, the union's claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious" American Mfg Co, 363 U S, at 568 Finally, it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that "[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute Doubts should be resolved in favor of coverage" Warrior & 363 U S, -583 See also Gateway Coal Co v Mine Such a presumption is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder " In such cases, "[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail" Warrior & This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, "furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objectives in pursuing collective bargaining" Schneider Moving & Storage Co v Robbins, 466 US 364, See Gateway Coal Co, The willingness of parties to enter into agreements that provide for arbitration of specified disputes would be "drastically reduced," however, if a labor arbitrator had the "power to determine his own jurisdiction " Cox, Reflections Upon Labor Arbitration, 72 Harv L Rev 1482, Were this the applicable rule, an arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered "to impose obligations outside the contract limited only by his understanding and conscience" Ibid This result undercuts the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements, and is antithetical to the function of a collective-bargaining agreement as setting out the rights and duties of the parties With these principles in mind, it is evident that the Seventh Circuit erred in ordering the parties to arbitrate the arbitrability question It is the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by the Company If the court determines that the agreement so provides, then it is for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement It was for the court, not the arbitrator, to decide in the first instance whether the dispute was to be resolved through arbitration The Union does not contest the application of these principles to the present case Instead, it urges the Court to examine the specific provisions of the agreement for itself and to affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs at issue here But it is usually not our function in the first instance to construe collective-bargaining contracts and arbitration clauses, or to consider any other evidence that might unmistakably demonstrate that a particular grievance was not to *652 be subject to arbitration The issue in the case is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause That issue should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings in conformity with this opinion It is so ordered

Justice Thomas

second_dissenting

Sessions v. Dimaya

https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/

https://www.courtlistener.com/api/rest/v3/clusters/4487345/

2017-001

I agree with THE CHIEF JUSTICE that 18 U.S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu­ tionally vague either. See id., at ___ (THOMAS, J., concur­ ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “ ‘sum’ ” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisons Johnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12). While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as 2 SESSIONS v. DIMAYA THOMAS, J., dissenting unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be­ cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Ac­ cordingly, I respectfully dissent. I I continue to harbor doubts about whether the vague­ ness doctrine can be squared with the original meaning of the Due Process Clause—and those doubts are only ampli­ fied in the removal context. I am also skeptical that the vagueness doctrine can be justified as a way to prevent delegations of core legislative power in this context. But I need not resolve these questions because, if the vagueness doctrine has any basis in the Due Process Clause, it must be limited to cases in which the statute is unconstitution­ ally vague as applied to the person challenging it. That is not the case for respondent, whose prior convictions for first-degree residential burglary in California fall comfort­ ably within the scope of §16(b). A The Fifth Amendment’s Due Process Clause provides that no person shall be “deprived of life, liberty, or prop- erty, without due process of law.” Section 16(b), as incorpo­ rated by the INA, cannot violate this Clause unless the following propositions are true: The Due Process Clause requires federal statutes to provide certain minimal pro­ cedures, the vagueness doctrine is one of those procedures, and the vagueness doctrine applies to statutes governing the removal of aliens. Although I need not resolve any of these propositions today, each one is questionable. I will address them in turn. Cite as: 584 U. S. ____ (2018) 3 THOMAS, J., dissenting 1 First, the vagueness doctrine is not legitimate unless the “law of the land” view of due process is incorrect. Under that view, due process “require[s] only that our Government . . . proceed . . . according to written constitu­ tional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson v. Colorado, 581 U. S. ___, ___, n. 1 (2017) (THOMAS, J., dissenting) (slip op., at 2, n. 1) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murray’s Lessee v. Hoboken Land & Im- provement Co., 18 How. 272 (1856). See id., at 276 (hold­ ing that the Due Process Clause “is a restraint on the legislative as well as on the executive and judicial powers of the government”). But the textual and historical sup­ port for the law-of-the-land view is not insubstantial.1 2 Even under Murray’s Lessee, the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” Id., at 277. That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone . . . believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].” Johnson, supra, at ___ (opinion of THOMAS, J.) (slip op., at —————— 1 See,e.g., In re Winship, 397 U.S. 358, 382–384 (1970) (Black, J., dissenting); Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005, 1041–1043 (2011); Berger, “Law of the Land” Reconsid­ ered, 74 Nw. U. L. Rev. 1, 2–17 (1979); Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368–373 (1911); see also 4 The Papers of Alexander Hamilton 35 (Syrett & Cooke eds. 1962) (“The words ‘due process’ have a precise technical import, and . . . can never be referred to an act of legislature”). 4 SESSIONS v. DIMAYA THOMAS, J., dissenting 11). That is not because Americans were unfamiliar with vague laws. Rather, early American courts, like their English predecessors, addressed vague laws through statutory construction instead of constitutional law. See Note, Void for Vagueness: An Escape From Statutory Interpretation, 23 Ind. L. J. 272, 274–279 (1948). They invoked the rule of lenity and declined to apply vague penal statutes on a case-by-case basis. See Johnson, 576 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–10); e.g., ante, at 5–6, and n. 1 (GORSUCH, J., concurring in part and concurring in judgment) (collecting cases).2 The mod­ ern vagueness doctrine, which claims the judicial author­ ity to “strike down” vague legislation on its face, did not emerge until the turn of the 20th century. See Johnson, 576 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 11–13). The difference between the traditional rule of lenity and —————— 2 Before the 19th century, when virtually all felonies were punishable by death, English courts would sometimes go to extremes to find a reason to invoke the rule of lenity. See Hall, Strict or Liberal Construc­ tion of Penal Statutes, 48 Harv. L. Rev. 748, 751 (1935); e.g., ante, at 4– 7 (GORSUCH, J., concurring in part and concurring in judgment) (citing Blackstone’s discussion of a case about “cattle”). As the death penalty became less common, courts on this side of the Atlantic tempered the rule of lenity, clarifying that the rule requires an “ambiguity” in the text and cannot be used “to defeat the obvious intention of the legisla­ ture.” United States v. Wiltberger, 5 Wheat. 76 (1820) (Marshall, C. J.). Early American courts also declined to apply nonpenal statutes that were “unintelligible.” Johnson v. United States, 576 U. S. ___, ___, n. 3 (2014) (THOMAS, J., concurring in judgment) (slip op., at 10, n. 3); e.g., ante, at 5–6, and n. 1 (opinion of GORSUCH, J.) (collecting cases). Like lenity, however, this practice reflected a principle of statutory construc­ tion that was much narrower than the modern constitutional vagueness doctrine. Unintelligible statutes were considered inoperative because they were impossible to apply to individual cases, not because they were unconstitutional for failing to provide “fair notice.” See Johnson, 576 U. S., at ___, n. 3 (opinion of THOMAS, J.) (slip op., at 10, n. 3). Cite as: 584 U. S. ____ (2018) 5 THOMAS, J., dissenting the modern vagueness doctrine is not merely semantic. Most obviously, lenity is a tool of statutory construction, which means States can abrogate it—and many have. Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 752–754 (1935); see also Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 583 (1989) (“Arizona, by the way, seems to have preserved a fair and free society without adopting the rule that criminal statutes are to be strictly construed” (citing Ariz. Rev. Stat. §1-211C (1989))). The vagueness doctrine, by contrast, is a rule of constitutional law that States cannot alter or abolish. Lenity, moreover, applies only to “penal” statutes, 1 Blackstone, Commentaries on the Laws of England 88 (1765), but the vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal, Johnson, 576 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6); see also Note, Indefinite Crite­ ria of Definiteness in Statutes, 45 Harv. L. Rev. 160, 163 (1931) (explaining that the modern vagueness doctrine was not merely an “extension of the rule of strict construc­ tion of penal statutes” because it “expressly include[s] civil statutes within its scope,” reflecting a “regrettable disre­ gard” for legislatures).3 In short, early American courts were not applying the modern vagueness doctrine by another name. They were engaged in a fundamentally different enterprise. Tellingly, the modern vagueness doctrine emerged at a time when this Court was actively interpreting the Due —————— 3 This distinction between penal and nonpenal statutes would be decisive here because, traditionally, civil deportation laws were not considered penal. See Bugajewitz v. Adams, 228 U.S. 585, 591 (1913); Fong Yue Ting v. United States, 149 U.S. 698, 709, 730 (1893). Al- though this Court has applied a kind of strict construction to civil deportation laws, that practice did not emerge until the mid-20th century. See Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). 6 SESSIONS v. DIMAYA THOMAS, J., dissenting Process Clause to strike down democratically enacted laws—first in the name of the “liberty of contract,” then in the name of the “right to privacy.” See Johnson, 576 U. S., at ___–___ (opinion of THOMAS, J.) (slip op., at 13–16). That the vagueness doctrine “develop[ed] on the federal level concurrently with the growth of the tool of substan­ tive due process” does not seem like a coincidence. Note, 23 Ind. L. J., at 278. Like substantive due process, the vagueness doctrine provides courts with “open-ended authority to oversee [legislative] choices.” Kolender v. Lawson, 461 U.S. 352, 374 (1983) (White, J., dissenting). This Court, for example, has used the vagueness doctrine to invalidate antiloitering laws, even though those laws predate the Declaration of Independence. See Johnson, supra, at ___ (opinion of THOMAS, J.) (slip op., at 7) (dis­ cussing Chicago v. Morales, 527 U.S. 41 (1999)). This Court also has a bad habit of invoking the Due Process Clause to constitutionalize rules that were tradi­ tionally left to the democratic process. See, e.g., Williams v. Pennsylvania, 579 U. S. ___ (2016); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Foucha v. Louisiana, 504 U.S. 71 (1992); cf. Montgomery v. Louisi- ana, 577 U. S. ___ (2016). If vagueness is another example of this practice, then that is all the more reason to doubt its legitimacy. 3 Even assuming the Due Process Clause prohibits vague laws, this prohibition might not apply to laws governing the removal of aliens. Cf. Johnson, 576 U. S., at ___, n. 7 (opinion of THOMAS, J.) (slip op., at 17, n. 7) (stressing the need for specificity when assessing alleged due process rights). The Founders were familiar with English law, where “ ‘the only question that ha[d] ever been made in regard to the power to expel aliens [was] whether it could be exercised by the King without the consent of Parlia­ Cite as: 584 U. S. ____ (2018) 7 THOMAS, J., dissenting ment.’ ” Demore v. Kim, 538 U.S. 510, 538 (2003) (O’Connor, J., concurring in part and concurring in judg­ ment) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893)). And, in this country, the notion that the Due Process Clause governed the removal of aliens was not announced until the 20th century. Less than a decade after the ratification of the Bill of Rights, the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the Alien Acts. One of those Acts, the Alien Friends Act, gave the President unfettered discretion to expel any aliens “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 machinations against the government thereof.” An Act Concerning Aliens §1, 1 Stat. 571. This statute was modeled after the Aliens Act 1793 in England, which similarly gave the King unfettered discretion to expel aliens as he “shall think necessary for the publick Secur­ ity.” 33 Geo. III, ch. 4, §18, in 39 Eng. Stat. at Large 16. Both the Fifth Congress and the States thoroughly de- bated the Alien Friends Act. Virginia and Kentucky enacted resolutions (anonymously drafted by Madison and Jeffer­ son) opposing the Act, while 10 States enacted counter- resolutions condemning the views of Virginia and Ken­ tucky. See Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int’l L. 63, 85, 103 (2002). The Jeffersonian Democratic-Republicans, who viewed the Alien Friends Act as a threat to their party and the institution of slavery,4 raised a number of constitutional —————— 4 The Jeffersonian Democratic-Republicans who opposed the Alien Friends Act primarily represented slave States, and their party’s 8 SESSIONS v. DIMAYA THOMAS, J., dissenting objections. Some of the Jeffersonians argued that the Alien Friends Act violated the Fifth Amendment’s Due Process Clause. They complained that the Act failed to provide aliens with all the accouterments of a criminal trial. See, e.g., Kentucky Resolutions ¶6, in 4 The Debates in the Several Conventions on the Adoption of the Federal Constitution 541–542 (J. Elliot ed. 1836) (Elliot’s Debates); 8 Annals of Cong. 1982–1983 (1798) (statement of Rep. Gallatin); Madison’s Report on the Virginia Resolutions (Jan. 7, 1800), in 6 Writings of James Madison 361–362 (G. Hunt ed. 1906) (Madison’s Report).5 The Federalists gave two primary responses to this due process argument. First, the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution. See, e.g., Randolph, Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, pp. 34– 35 (1850) (Virginia Debates) (statement of George K. Taylor) (arguing that aliens “were not a party to the [Con­ stitution]” and that “cases between the government and —————— political strength came from the South. See Fehlings, Storm on the Constitution: The First Deportation Law, 10 Tulsa J. Comp. & Int’l L. 63, 84 (2002). The Jeffersonians opposed any federal control over immigration, which their constituents feared would be used to pre-empt State laws that prohibited the entry of free blacks. Id., at 84–85; see also Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 S. Ct. Rev. 109, 116 (“Whether pro- or anti-slavery, most southerners, including Jefferson and Madison . . . were united behind a policy of denying to the national government any competence to deal with the question of slavery”). The fear was that “mobile free Negroes would intermingle with slaves, encourage them to run away, and foment insurrection.” I. Berlin, Slaves Without Masters 92 (1974). 5 The Jeffersonians also argued that the Alien Friends Act violated due process because, if aliens disobeyed the President’s orders to leave the country, they could be convicted of a crime and imprisoned without a trial. See, e.g., Kentucky Resolutions ¶6, 4 Elliot’s Debates 541. That charge was false. The Alien Friends Act gave federal courts jurisdiction over alleged violations of the President’s orders. See §4, 1 Stat. 571. Cite as: 584 U. S. ____ (2018) 9 THOMAS, J., dissenting aliens . . . arise under the law of nations”); id., at 100 (statement of William Cowan) (identifying the source of rights “as to citizens, the Constitution; as to aliens, the law of nations”); A. Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 18 (1799) (Charge to the Grand Juries) (“[T]he Constitution leaves aliens, as in other countries, to the protection of the general principles of the law of na­ tions”); Answer to the Resolutions of the State of Ken­ tucky, Oct. 29, 1799, in 4 Records of the Governor and Council of the State of Vermont 528 (1876) (denying “that aliens had any rights among us, except what they derived from the law of nations, and rights of hospitality”). The law of nations imposed no enforceable limits on a nation’s power to remove aliens. See, e.g., 1 E. de Vattel, Law of Nations, §§230–231, pp. 108–109 (J. Chitty et al. transl. and ed. 1883). Second, the Federalists responded that the expulsion of aliens “did not touch life, liberty, or property.” Virginia Debates 34. The founding generation understood the phrase “life, liberty, or property” to refer to a relatively narrow set of core private rights that did not depend on the will of the government. See Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. ___, ___–___ (2015) (THOMAS, J., dissenting) (slip op., at 9–10); Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 566–568 (2007) (Nelson). Quasi-private rights—“privileges” or “franchises” bestowed by the government on individuals— did not qualify and could be taken away without judicial process. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 12); Nelson 567–569. The Federalists argued that an alien’s right to reside in this country was one such privilege. See, e.g., Virginia Debates 34 (arguing that “ordering away an alien . . . was not a matter of right, but of favour,” which did not require a jury trial); Report of the 10 SESSIONS v. DIMAYA THOMAS, J., dissenting Select Committee of the House of Representatives, Made to the House of Representatives on Feb. 21, 1799, 9 Annals of Cong. 2987 (1799) (stating that aliens “remain in the country . . . merely as matter of favor and permission” and can be removed at any time without a criminal trial); Charge to the Grand Juries 11–13 (similar). According to the Minority Address of the Virginia Legislature (anony­ mously drafted by John Marshall), “[T]he right of remain­ ing in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn” without judicial process. Address of the Minority in the Virginia Legisla­ ture to the People of that State 9–10 (1799) (Virginia Minority Address). Unlike “a grant of land,” the “[a]dmission of an alien to residence . . . is revocable, like a permission.” A. Addison, Analysis of the Report of the Committee of the Virginia Assembly 23 (1800). Removing a resident alien from the country did not affect “life, lib­ erty, or property,” the Federalists argued, until the alien became a naturalized citizen. See id., at 23–24; Charge to the Grand Juries 11–13. That the alien’s permanent residence was conferred by statute would not have made a difference. See Nelson 571, 580–582; Teva Pharmaceuti- cals USA, Inc. v. Sandoz, Inc., 574 U. S. ___, ___, n. 2 (2015) (THOMAS, J., dissenting) (slip op., at 9, n. 2). After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century. The States enacted their own removal statutes during this period, see G. Neuman, Strangers to the Constitution 19– 43 (1996), and I am aware of no decision questioning the legality of these statutes under State due-process or law­ of-the-land provisions. Beginning in the late 19th century, the Federal Government reinserted itself into the regula­ tion of immigration. When this Court was presented with constitutional challenges to Congress’ removal laws, it initially rejected them for many of the same reasons that Cite as: 584 U. S. ____ (2018) 11 THOMAS, J., dissenting Marshall and the Federalists had cited in defense of the Alien Friends Act. Although the Court rejected the Feder­ alists’ argument that resident aliens do not enjoy constitu­ tional rights, see Wong Wing v. United States, 163 U.S. 228, 238 (1896), it agreed that civil deportation statutes do not implicate “life, liberty, or property,” see, e.g., Harisi- ades v. Shaughnessy, 342 U.S. 580, 584–585 (1952) (“[T]hat admission for permanent residence confers a ‘vested right’ on the alien [is] not founded in precedents of this Court”); United States ex rel. Turner v. Williams, 194 U.S. 279, 290 (1904) (“[T]he deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law”); Fong Yue Ting, 149 U.S., at 730 (“[Deportation] is but a method of enforcing the return to his own country of an alien who has not complied with [statutory] conditions . . . . He has not, therefore, been deprived of life, liberty, or property without due process of law”); id., at 713–715 (similar). Consistent with this understanding, “federal immigration laws from 1891 until 1952 made no express provision for judicial review.” Demore, 538 U.S., at 538 (opinion of O’Connor, J.). It was not until the 20th century that this Court held that nonpenal removal statutes could violate the Due Process Clause. See Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). That ruling opened the door for the Court to apply the then-nascent vagueness doctrine to immigration statutes. But the Court upheld vague stand­ ards in immigration laws that it likely would not have tolerated in criminal statutes. See, e.g., Boutilier v. INS, 387 U.S. 118, 122 (1967) (“ ‘psychopathic personality’ ”); Jordan v. De George, 341 U.S. 223, 232 (1951) (“ ‘crime involving moral turpitude’ ”); cf. Mahler, supra, at 40 (“ ‘undesirable residents’ ”). Until today, this Court has never held that an immigration statute is unconstitution­ ally vague. Thus, for more than a century after the founding, it was, 12 SESSIONS v. DIMAYA THOMAS, J., dissenting at best, unclear whether federal removal statutes could violate the Due Process Clause. And until today, this Court had never deemed a federal removal statute void for vagueness. Given this history, it is difficult to conclude that a ban on vague removal statutes is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ances­ tors” protected by the Fifth Amendment’s Due Process Clause. Murray’s Lessee, 18 How., at 277. B Instead of a longstanding procedure under Murray’s Lessee, perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically, the doctrine of nondelegation. See Chapman & McConnell, Due Pro­ cess as Separation of Powers, 121 Yale L. J. 1672, 1806 (2012) (“Vague statutes have the effect of delegating law­ making authority to the executive”). Madison raised a similar objection to the Alien Friends Act, arguing that its expansive language effectively allowed the President to exercise legislative (and judicial) power. See Madison’s Report 369–371. And this Court’s precedents have occa­ sionally described the vagueness doctrine in terms of nondelegation. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972) (“A vague law impermissibly delegates basic policy matters”). But they have not been consistent on this front. See, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 516 (1964) (“ ‘The objectionable qual- ity of vagueness . . . does not depend upon . . . unchanneled delegation of legislative powers’ ”); Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (“Objections to vagueness under the Due Process Clause rest on the lack of notice”). I agree that the Constitution prohibits Congress from delegating core legislative power to another branch. See Department of Transportation v. Association of American Railroads, 575 U. S. ___, ___ (2015) (AAR) (THOMAS, J., Cite as: 584 U. S. ____ (2018) 13 THOMAS, J., dissenting concurring in judgment) (slip op., at 3) (“Congress improp­ erly ‘delegates’ legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power”); accord, Whit- man v. American Trucking Assns., Inc., 531 U.S. 457, 487 (2001) (THOMAS, J., concurring). But I locate that princi­ ple in the Vesting Clauses of Articles I, II, and III—not in the Due Process Clause. AAR, supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 2–3); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 123 (1976) (Rehnquist, J., dis­ senting) (“[T]hat there was an improper delegation of authority . . . has not previously been thought to depend upon the procedural requirements of the Due Process Clause”). In my view, impermissible delegations of legis­ lative power violate this principle, not just delegations that deprive individuals of “life, liberty, or property,” Amdt. 5. Respondent does not argue that §16(b), as incorporated by the INA, is an impermissible delegation of power. See Brief for Respondent 50 (stating that “there is no delega­ tion question” in this case). I would not reach that ques­ tion here, because this case can be resolved on narrower grounds. See Part I–C, infra. But at first blush, it is not at all obvious that the nondelegation doctrine would jus­ tify wholesale invalidation of §16(b). If §16(b) delegates power in this context, it delegates power primarily to the Executive Branch entities that administer the INA—namely, the Attorney General, im­ migration judges, and the Board of Immigration Appeals (BIA). But Congress does not “delegate” when it merely authorizes the Executive Branch to exercise a power that it already has. See AAR, supra, at ___ (opinion of THOMAS, J.) (slip op., at 3). And there is some founding- era evidence that “the executive Power,” Art. II, §1, in­ cludes the power to deport aliens. Blackstone—one of the political philosophers whose 14 SESSIONS v. DIMAYA THOMAS, J., dissenting writings on executive power were “most familiar to the Framers,” Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 231, 253 (2001)—described the power to deport aliens as executive and located it with the King. Alien friends, Blackstone explained, are “liable to be sent home whenever the king sees occasion.” 1 Commentaries on the Laws of England 252 (1765). When our Constitution was ratified, moreover, “[e]minent Eng­ lish judges, sitting in the Judicial Committee of the Privy Council, ha[d] gone very far in supporting the . . . expul­ sion, by the executive authority of a colony, of aliens.” Demore, 538 U.S., at 538 (opinion of O’Connor, J.) (quot­ ing Fong Yue Ting, 149 U.S., at 709). Some of the Feder­ alists defending the Alien Friends Act similarly argued that the President had the power to remove aliens. See, e.g., Virginia Debates 35 (statement of George K. Taylor) (arguing that the power to remove aliens is “most properly entrusted” with the President, since “[h]e, by the Constitu­ tion, was bound to execute the laws” and is “the executive officer, with whom all persons and bodies whatever were accustomed to communicate”); Virginia Minority Address 9 (arguing that the removal of aliens “is a measure of general safety, in its nature political and not forensic, the execution of which is properly trusted to the department which represents the nation in all its interior relations”); Charge to the Grand Juries 29–30 (“As a measure of na­ tional defence, this discretion, of expulsion or indulgence, seems properly vested in the branch of the government peculiarly charged with the direction of the executive powers, and of our foreign relations. There is in it a mix­ ture of external policy, and of the law of nations, that justifies this disposition”). More recently, this Court recognized that “[r]emoval decisions” implicate “our cus­ tomary policy of deference to the President in matters of foreign affairs” because they touch on “our relations with foreign powers and require consideration of changing Cite as: 584 U. S. ____ (2018) 15 THOMAS, J., dissenting political and economic circumstances.” Jama v. Immigra- tion and Customs Enforcement, 543 U.S. 335, 348 (2005) (internal quotation marks omitted). Taken together, this evidence makes it difficult to confidently conclude that the INA, through §16(b), delegates core legislative power to the Executive. Instead of the Executive, perhaps §16(b) impermissibly delegates power to the Judiciary, since the Courts of Ap­ peals often review the BIA’s application of §16(b). I as­ sume that, at some point, a statute could be so devoid of content that a court tasked with interpreting it “would simply be making up a law—that is, exercising legislative power.” Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 339 (2002); see id., at 339–340 (providing examples such as a gibberish-filled statute or a statute that requires “ ‘goodness and niceness’ ”). But I am not confident that our modern vagueness doctrine—which focuses on whether regulations of individual conduct provide “fair warning,” are “clearly defined,” and do not encourage “arbitrary and discriminatory enforcement,” Grayned, 408 U.S., at 108; Kolender, 461 U.S., at 357— accurately demarcates the line between legislative and judicial power. The Founders understood that the inter­ pretation of legal texts, even vague ones, remained an exercise of core judicial power. See Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 8–9); Hamburger, The Constitution’s Accommodation of Social Change, 88 Mich. L. Rev. 239, 303–310 (1989). Courts were expected to clarify the meaning of such texts over time as they applied their terms to specific cases. See id., at 309–310; Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 526 (2003). Although early American courts declined to apply vague or unintelligible statutes as ap­ propriate in individual cases, they did not wholesale inval­ idate them as unconstitutional delegations of legislative 16 SESSIONS v. DIMAYA THOMAS, J., dissenting power. See Johnson, 576 U. S., at ___–___, and n. 3 (opin­ ion of THOMAS, J.) (slip op., at 10–11, and n. 3). C 1 I need not resolve these historical questions today, as this case can be decided on narrower grounds. If the vagueness doctrine has any basis in the original meaning of the Due Process Clause, it must be limited to case-by­ case challenges to particular applications of a statute. That is what early American courts did when they applied the rule of lenity. See id., at ___ (slip op., at 10). And that is how early American courts addressed constitutional challenges to statutes more generally. See ibid. (“[T]here is good evidence that [antebellum] courts . . . understood judicial review to consist ‘of a refusal to give a statute effect as operative law in resolving a case,’ a notion quite distinct from our modern practice of ‘ “strik[ing] down” legislation’ ” (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010)). 2 This Court’s precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him. See Holder v. Humanitarian Law Project, 561 U.S. 1, 18–19 (2010); United States v. Williams, 553 U.S. 285, 304 (2008); Maynard, 486 U.S., at 361; Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, and n. 7 (1982) (collecting cases). Johnson did not overrule these prece­ dents. While Johnson weakened the principle that a facial challenge requires a statute to be vague “in all applica­ tions,” 576 U. S., at ___ (slip op., at 11) (emphasis added), it did not address whether a statute must be vague as applied to the person challenging it. That question did not arise because the Court concluded that ACCA’s residual Cite as: 584 U. S. ____ (2018) 17 THOMAS, J., dissenting clause was vague as applied to the crime at issue there: unlawful possession of a short-barreled shotgun. See id., at ___ (slip op., at 9). In my view, §16(b) is not vague as applied to respond­ ent. When respondent committed his burglaries in 2007 and 2009, he was “sufficiently forewarned . . . that the statutory consequence . . . is deportation.” De George, 341 U.S., at 232. At the time, courts had “unanimous[ly]” concluded that residential burglary is a crime of violence, and not “a single opinion . . . ha[d] held that [it] is not.” United States v. M. C. E., 232 F.3d 1252, 1255–1256 (CA9 2000); see also United States v. Davis, 881 F.2d 973, 976 (CA11 1989) (explaining that treating residential burglary as a crime of violence was “[i]n accord with common law tradition and the settled law of the federal circuits”). Residential burglary “ha[d] been considered a violent offense for hundreds of years . . . because of the potential for mayhem if burglar encounters resident.” United States v. Pinto, 875 F.2d 143, 144 (CA7 1989). The Model Penal Code had recognized that risk, see ALI, Model Penal Code §221.1, Comment 3(c), p. 75 (1980); the Sentencing Com­ mission had recognized that risk; see United States Sen­ tencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006); and this Court had repeatedly recognized that risk, see, e.g., James v. United States, 550 U.S. 192, 203 (2007); Taylor v. United States, 495 U.S. 575, 588 (1990). In Leocal v. Ashcroft, 543 U.S. 1 (2004), this Court unan­ imously agreed that burglary is the “classic example” of a crime of violence under §16(b), because it “involves a substantial risk that the burglar will use force against a victim in completing the crime.” Id., at 10. That same risk is present with respect to respondent’s statute of conviction—first-degree residential burglary, Cal. Penal Code Ann. §§459, 460(a) (West 1999). The California Supreme Court has explained that the State’s burglary laws recognize “the dangers to personal safety 18 SESSIONS v. DIMAYA THOMAS, J., dissenting created by the usual burglary situation.” People v. Davis, 18 Cal. 4th 712, 721, 958 P.2d 1083, 1089 (1998) (empha­ sis added). “ ‘[T]he fact that a building is used as a home . . . increases such danger,’ ” which is why California ele­ vates residential burglary to a first-degree offense. People v. Rodriguez, 122 Cal. App. 4th 121, 133, 18 Cal. Rptr. 3d 550, 558 (2004); see also People v. Wilson, 208 Cal. App. 3d 611, 615, 256 Cal. Rptr. 422, 425 (1989) (“[T]he higher degree . . . is intended to prevent those situations which are most dangerous, most likely to cause personal injury” (emphasis deleted)). Although unlawful entry is not an element of the offense, courts “unanimous[ly]” agree that the offense still involves a substantial risk of physical force. United States v. Avila, 770 F.3d 1100, 1106 (CA4 2014); accord, United States v. Maldonado, 696 F.3d 1095, 1102, 1104 (CA10 2012); United States v. Scanlan, 667 F.3d 896, 900 (CA7 2012); United States v. Echeverria– Gomez, 627 F.3d 971, 976 (CA5 2010); United States v. Becker, 919 F.2d 568, 573 (CA9 1990). First-degree resi­ dential burglary requires entry into an inhabited dwelling, with the intent to commit a felony, against the will of the homeowner—the key elements that create the risk of violence. See United States v. Park, 649 F.3d 1175, 1178– 1180 (CA9 2011); Avila, supra, at 1106–1107; Becker, supra, at 571, n. 5. As this Court has explained, “[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.” James, supra, at 203. Drawing on Johnson and the decision below, the Court suggests that residential burglary might not be a crime of violence because “ ‘only about seven percent of burglaries actually involve violence.’ ” Ante, at 9, n. 3 (citing Dimaya v. Lynch, 803 F.3d 1110, 1116, n. 7 (CA9 2015)); see Bu­ reau of Justice Statistics, S. Catalano, National Crime Cite as: 584 U. S. ____ (2018) 19 THOMAS, J., dissenting Victimization Survey: Victimization During Household Burglary 1 (Sept. 2010), https://www.bjs.gov/content/pub/ pdf/vdhb.pdf (as last visited Apr. 13, 2018). But this statistic—which measures actual violence against a mem­ ber of the household, see id., at 1, 12—is woefully underin­ clusive. It excludes other potential victims besides house­ hold members—for example, “a police officer, or a bystande[r] who comes to investigate,” James, supra, at 203. And §16(b) requires only a risk of physical force, not actual physical force, and that risk would seem to be present whenever someone is home during the burglary. Further, Johnson is not conclusive because, unlike ACCA’s residual clause, §16(b) covers offenses that involve a sub­ stantial risk of physical force “against the person or prop- erty of another.” (Emphasis added.) Surely the ordinary case of residential burglary involves at least one of these risks. According to the statistics referenced by the Court, most burglaries involve either a forcible entry (e.g., break­ ing a window or slashing a door screen), an attempted forcible entry, or an unlawful entry when someone is home. See Bureau of Justice Statistics, supra, at 2 (Table 1). Thus, under any metric, respondent’s convictions for first-degree residential burglary are crimes of violence under §16(b). 3 Finally, if facial vagueness challenges are ever appro­ priate, I adhere to my view that a law is not facially vague “ ‘[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law.’ ” Morales, 527 U.S., at 112 (THOMAS, J., dissenting) (quoting Kolender, 461 U.S., at 370–371 (White, J., dissenting)). The residual clause of ACCA had such a core. See Johnson, 576 U. S., at ___ (slip op., at 10); id., at ___–___ (ALITO, J., dissenting) (slip 20 SESSIONS v. DIMAYA THOMAS, J., dissenting op., at 14–15). And §16(b) has an even wider core, as THE CHIEF JUSTICE explains. Thus, the Court should not have invalidated §16(b), either on its face or as applied to respondent. II Even taking the vagueness doctrine and Johnson at face value, I disagree with the Court’s decision to invalidate §16(b). The sole reason that the Court deems §16(b) un­ constitutionally vague is because it reads the statute as incorporating the categorical approach—specifically, the “ordinary case” approach from ACCA’s residual clause. Although the Court mentions “[t]wo features” of §16(b) that make it vague—the ordinary-case approach and an imprecise risk standard—the Court admits that the sec­ ond feature is problematic only in combination with the first. Ante, at 8. Without the ordinary-case approach, the Court “do[es] not doubt” the constitutionality of §16(b). Ante, at 10. But if the categorical approach renders §16(b) unconsti­ tutionally vague, then constitutional avoidance requires us to make a reasonable effort to avoid that interpretation. And a reasonable alternative interpretation is available: Instead of asking whether the ordinary case of an alien’s offense presents a substantial risk of physical force, courts should ask whether the alien’s actual underlying conduct presents a substantial risk of physical force. I will briefly discuss the origins of the categorical approach and then explain why the Court should abandon it for §16(b). A 1 The categorical approach originated with Justice Blackmun’s opinion for the Court in Taylor v. United States, 495 U.S. 575 (1990). The question in Taylor was whether ACCA’s reference to “burglary” meant burglary Cite as: 584 U. S. ____ (2018) 21 THOMAS, J., dissenting as defined by state law or burglary in the generic sense. After “devoting 10 pages of [its] opinion to legislative history,” id., at 603 (Scalia, J., concurring in part and concurring in judgment), and finding that Congress had made “an inadvertent casualty in [the] complex drafting process,” id., at 589–590 (majority opinion), the Court concluded that ACCA referred to burglary in the generic sense, id., at 598. The Court then addressed how the Government would prove that a defendant was convicted of generic burglary, as opposed to another offense. Id., at 599–602. Taylor rejected the notion that the Government could introduce evidence about the “particular facts” of the defendant’s underlying crime. Id., at 600. Instead, the Court adopted a “categorical approach,” which focused primarily on the “statutory definition of the prior offense.” Id., at 602. Although Taylor was interpreting one of ACCA’s enu­ merated offenses, this Court later extended the categorical approach to ACCA’s residual clause. See James, 550 U.S., at 208. That extension required some reworking. Because ACCA’s enumerated-offenses clause asks whether a prior conviction “is burglary, arson, or extortion,” 18 U.S. C. §924(e)(2)(B)(ii), Taylor instructed courts to focus on the definition of the underlying crime. The residual clause, by contrast, asks whether a prior conviction “in­ volves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). Thus, the Court held that the categorical approach for the residual clause asks “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James, supra, at 208 (emphasis added). This “ordinary case” approach allowed courts to apply the residual clause without inquir­ ing into the individual facts of the defendant’s prior crime. Taylor gave a few reasons why the categorical approach was the correct reading of ACCA, see 495 U.S., at 600– 22 SESSIONS v. DIMAYA THOMAS, J., dissenting 601, but the “heart of the decision” was the Court’s con­ cern with limiting the amount of evidence that the parties could introduce at sentencing. Shepard v. United States, 544 U.S. 13, 23 (2005). Specifically, the Court was wor­ ried about potential violations of the Sixth Amendment. If the parties could introduce evidence about the defendant’s underlying conduct, then sentencing proceedings might devolve into a full-blown minitrial, with factfinding by the judge instead of the jury. See id., at 24–26; Taylor, supra, at 601. While this Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), allows judges to find facts about a defendant’s prior convictions, a full- blown minitrial would look “too much like” the kind of factfinding that the Sixth Amendment requires the jury to conduct. Shepard, 544 U.S., at 25. By construing ACCA to require a categorical approach, then, the Court was following “[t]he rule of reading statutes to avoid serious risks of unconstitutionality.” Ibid. 2 I disagreed with the Court’s decision to extend the categorical approach to ACCA’s residual clause. See James, 550 U.S., at 231–232 (dissenting opinion). The categorical approach was an “ ‘unnecessary exercise,’ ” I explained, because it created the same Sixth Amendment problem that it tried to avoid. Id., at 231. Absent waiver, a defendant has the right to have a jury find “every fact that is by law a basis for imposing or increasing punish­ ment,” including the fact of a prior conviction. Apprendi v. New Jersey, 530 U.S. 466, 501 (2000) (THOMAS, J., concur­ ring). The exception recognized in Almendarez-Torres for prior convictions is an aberration, has been seriously undermined by subsequent precedents, and should be reconsidered. See Mathis v. United States, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring) (slip op., at 1); Shep- ard, supra, at 27–28 (THOMAS, J., concurring in part and Cite as: 584 U. S. ____ (2018) 23 THOMAS, J., dissenting concurring in judgment). In my view, if the Government wants to enhance a defendant’s sentence based on his prior convictions, it must put those convictions in the indictment and prove them to a jury beyond a reasonable doubt.6 B My objection aside, the ordinary-case approach soon created problems of its own. The Court’s attempt to avoid the Scylla of the Sixth Amendment steered it straight into the Charybdis of the Fifth. The ordinary-case approach that was created to honor the individual right to a jury is now, according to the Court, so vague that it deprives individuals of due process. I see no good reason for the Court to persist in reading the ordinary-case approach into §16(b). The text of §16(b) does not mandate the ordinary-case approach, the con­ cerns that led this Court to adopt it do not apply here, and there are no prudential reasons for retaining it. In my view, we should abandon the categorical approach for §16(b). 1 The text of §16(b) does not require a categorical ap­ proach. The INA declares an alien deportable if he is —————— 6 The Sixth Amendment is, thus, not a reason to maintain the cate­ gorical approach in criminal cases. Contra, ante, at 13–14 (plurality opinion). Even if it were, the Sixth Amendment does not apply in immigration cases like this one. See Part II–B–2, infra. The plurality contends that, if it must contort the text of §16(b) to avoid a Sixth Amendment problem in criminal cases, then it must also contort the text of §16(b) in immigration cases, even though the Sixth Amendment problem does not arise in the immigration context. See ante, at 13–14, 15. But, as I have explained elsewhere, this “lowest common denomi­ nator” approach to constitutional avoidance is both ahistorical and illogical. See Clark v. Martinez, 543 U.S. 371, 395–401 (2005) (dissent­ ing opinion). 24 SESSIONS v. DIMAYA THOMAS, J., dissenting “convicted of an aggravated felony” after he is admitted to the United States. 8 U.S. C. §1227(a)(2)(A)(iii). Aggra­ vated felonies include “crime[s] of violence” as defined in §16. §1101(a)(43)(F). Section 16, in turn, defines crimes of violence as follows: “(a) an offense that has as an element the use, at­ tempted use, or threatened use of physical force against the person or property of another, or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” At first glance, §16(b) is not clear about the precise question it poses. On the one hand, the statute might refer to the metaphysical “nature” of the offense and ask whether it ordinarily involves a substantial risk of physi­ cal force. On the other hand, the statute might refer to the underlying facts of the offense that the offender com­ mitted; the words “by its nature,” “substantial risk,” and “may” would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense. The text can bear either interpretation. See Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009) (“[I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like some­ times refer to a generic crime . . . and sometimes refer to the specific acts in which an offender engaged on a specific occasion”). It is entirely natural to use words like “nature” and “offense” to refer to an offender’s actual underlying conduct.7 —————— 7 See, e.g., 18 U.S. C. §3553(a)(2) (directing sentencing judges to con­ sider “the nature and circumstances of the offense”); Schware v. Board of Bar Examiners of N. M., 353 U.S. 232, 242–243 (1957) (describing “the nature of the offense” committed by a bar applicant as “recruiting Cite as: 584 U. S. ____ (2018) 25 THOMAS, J., dissenting Although both interpretations are linguistically possi­ ble, several factors indicate that the underlying-conduct approach is the better one. To begin, §16(b) asks whether an offense “involves” a substantial risk of force. The word “involves” suggests that the offense must necessarily include a substantial risk of force. See The New Oxford Dictionary of English 962 (2001) (“include (something) as a necessary part or result”); Random House Dictionary of the English Language 1005 (2d ed. 1987) (“1. to include as —————— persons to go overseas to aid the Loyalists in the Spanish Civil War”); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 482 (1993) (O’Connor, J., dissenting) (describing “the nature of the offense at issue” as not “involving grave physical injury” but rather as a “busi­ ness dispute between two companies in the oil and gas industry”); United States v. Broce, 488 U.S. 563, 585–587 (1989) (Blackmun, J., dissenting) (describing “the nature of the charged offense” in terms of the specific facts alleged in the indictment); People v. Golba, 273 Mich. App. 603, 611, 729 N.W.2d 916, 922 (2007) (“[T]he underlying factual basis for a conviction governs whether the offense ‘by its nature consti­ tutes a sexual offense against an individual who is less than 18 years of age.’ ” (quoting Mich. Comp. Laws §28.722(e)(xi) (2006))); A Fix for Animal Abusers, Boston Herald, Nov. 22, 2017, p. 16 (“prosecutors were so horrified at the nature of his offense—his torture of a neighbor’s dog”); P. Ward, Attorney of Convicted Ex-Official Accuses Case’s Judge, Pittsburgh Post-Gazette, Nov. 10, 2015, p. B1 (identifying the “nature of his offense” as “taking money from an elderly, widowed client, and giving it to campaign funds”); Cross-Burning–Article Painted an Inaccurate Picture of Young Man in Question, Seattle Times, Aug. 12, 1991, p. A9 (“[The defendant] took no steps to prevent the cross that was burned from being constructed on his family’s premises and later . . . assisted in concealing a second cross . . . . This was the nature of his offense”); N. Libman, A Parole/Probation Officer Talks With Norma Libman, Chicago Tribune, May 29, 1988, p. I31 (describing “the nature of the offense” as “not serious” if “there was no definitive threat on life” or if “the dollar- and cents- amount was not great”); E. Walsh, District– U. S. Argument Delays Warrant for Escapee’s Arrest, Washington Post, May 29, 1986, p. C1 (describing “the nature of Murray’s alleged of­ fenses” as “point[ing] at two officers a gun that was later found to con- tain one round of ammunition”). 26 SESSIONS v. DIMAYA THOMAS, J., dissenting a necessary circumstance, condition, or consequence”); Oxford American Dictionary 349 (1980) (“1. to contain within itself, to make necessary as a condition or result”). That condition is always satisfied if the Government must prove that the alien’s underlying conduct involves a sub­ stantial risk of force, but it is not always satisfied if the Government need only prove that the “ordinary case” involves such a risk. See Johnson, 576 U. S., at ___ (ALITO, J., dissenting) (slip op., at 12). Tellingly, the other aggravated felonies in the INA that use the word “in­ volves” employ the underlying-conduct approach. See 8 U.S. C. §1101(a)(43)(M)(i) (“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000”); §1101(h)(3) (“any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another”). As do the similarly worded provisions of the Comprehensive Crime Control Act of 1984, the bill that contained §16(b). See, e.g., 98 Stat. 2059 (elevating the burden of proof for the release of “a person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage”); id., at 2068 (establishing the sentence for drug offenses “involving” specific quantities and types of drugs); id., at 2137 (defining violent crimes in aid of racketeering to include “attempting or conspiring to com­ mit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury”). A comparison of §16(b) and §16(a) further highlights why the former likely adopts an underlying-conduct ap­ proach. Section 16(a) covers offenses that have the use, attempted use, or threatened use of physical force “as an element.” Because §16(b) covers “other” offenses and is separated from §16(a) by the disjunctive word “or,” the natural inference is that §16(b) asks a different question. Cite as: 584 U. S. ____ (2018) 27 THOMAS, J., dissenting In other words, §16(b) must require immigration judges to look beyond the elements of an offense to determine whether it involves a substantial risk of physical force. But if the elements are insufficient, where else should immigration judges look to determine the riskiness of an offense? Two options are possible, only one of which is workable. The first option is to consult the underlying facts of the alien’s crime and then assess its riskiness. This approach would provide a definitive answer in every case. And courts are already familiar with this kind of inquiry. Cf. Johnson, supra, at ___ (slip op., at 12) (noting that “doz­ ens” of similarly worded laws ask courts to assess “the riskiness of conduct in which an individual defendant engages on a particular occasion”). Nothing suggests that Congress imposed a more limited inquiry when it enacted §16(b) in 1984. At the time, Congress had not yet enacted ACCA’s residual clause, this Court had not yet created the categorical approach, and this Court had not yet recog­ nized a Sixth Amendment limit on judicial factfinding at sentencing, see Chambers v. United States, 555 U.S. 122, 132 (2009) (ALITO, J., concurring in judgment). The second option is to imagine the “ordinary case” of the alien’s crime and then assess the riskiness of that hypothetical offense. But the phrase “ordinary case” does not appear in the statute. And imagining the ordinary case, the Court reminds us, is “hopeless[ly] indetermi­ na[te],” “wholly ‘speculative,’ ” and mere “guesswork.” Ante, at 7, 24 (quoting Johnson, supra, at ___–___ (slip op., at 5, 7)); see also Chambers, supra, at 133 (opinion of ALITO, J.) (observing that the categorical approach is “nearly impossible to apply consistently”). Because courts disfavor interpretations that make a statute impossible to apply, see A. Scalia & B. Garner, Reading Law 63 (2012), this Court should reject the ordinary-case approach for §16(b) and adopt the underlying-facts approach instead. 28 SESSIONS v. DIMAYA THOMAS, J., dissenting See Johnson, supra, at ___ (ALITO, J., dissenting) (slip op., at 10) (“When another interpretation is ready at hand, why should we assume that Congress gave the clause a meaning that is impossible—or even, exceedingly diffi­ cult—to apply”). 2 That the categorical approach is not the better reading of §16(b) should not be surprising, since the categorical approach was never really about the best reading of the text. As explained, this Court adopted that approach to avoid a potential Sixth Amendment problem with sentenc­ ing judges conducting minitrials to determine a defend­ ant’s past conduct. But even assuming the categorical approach solved this Sixth Amendment problem in crimi­ nal cases, no such problem arises in immigration cases. “[T]he provisions of the Constitution securing the right of trial by jury have no application” in a removal proceeding. Turner, 194 U.S., at 290. And, in criminal cases, the underlying-conduct approach would be perfectly constitu­ tional if the Government included the defendant’s prior conduct in the indictment, tried it to a jury, and proved it beyond a reasonable doubt. See Johnson, 576 U. S., at ___ (ALITO, J., dissenting) (slip op., at 12). Nothing in §16(b) prohibits the Government from proceeding this way, so the plurality is wrong to suggest that the underlying-conduct approach would necessarily “ping-pong us from one consti­ tutional issue to another.” Ante, at 14. If constitutional avoidance applies here at all, it re­ quires us to reject the categorical approach for §16(b). According to the Court, the categorical approach is uncon­ stitutionally vague. And, all agree that the underlying- conduct approach would not be. See Johnson, 576 U. S., at ___ (majority opinion) (slip op., at 12) (“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real­ Cite as: 584 U. S. ____ (2018) 29 THOMAS, J., dissenting world conduct”). Thus, if the underlying-conduct approach is a “reasonabl[e]” interpretation of §16(b), it is our “plain duty” to adopt it. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909). And it is reasonable, as explained above. In Johnson, the Court declined to adopt the underlying- conduct approach for ACCA’s residual clause. See 576 U. S., at ___–___ (slip op., at 12–13). The Court concluded that the categorical approach was the only reasonable reading of ACCA because the residual clause uses the word “convictions.” Id., at ___ (slip op., at 13). The Court also stressed the “utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.” Ibid. Neither of these arguments is persuasive with respect to the INA. Moreover, this Court has already rejected them. In Nijhawan, this Court unanimously concluded that one of the aggravated felonies in the INA—“an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” §1101(a)(43)(M)(i)—applies the underlying-conduct approach, not the categorical ap­ proach. 557 U.S., at 32. Although the INA also refers to “convict[ions],” §1227(a)(2)(A)(iii), the Court was not swayed by that argument. The word “convict[ion]” means only that the defendant’s underlying conduct must “ ‘be tied to the specific counts covered by the conviction,’ ” not “acquitted or dismissed counts or general conduct.” Id., at 42. As for the supposed practical problems with proving an alien’s prior conduct, the Court did not find that argu­ ment persuasive either. “[T]he ‘sole purpose’ of the ‘ag­ gravated felony’ inquiry,” the Court explained, “ ‘is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.’ ” Ibid. And because the INA places the burden on the Government to prove an alien’s conduct by clear and convincing evidence, §1229a(c)(3)(A), “uncertainties caused by the passage of 30 SESSIONS v. DIMAYA THOMAS, J., dissenting time are likely to count in the alien’s favor,” id., at 42. There are additional reasons why the practical problems identified in Johnson should not matter for §16(b)—even assuming they should have mattered for ACCA’s residual clause, see Lewis v. Chicago, 560 U.S. 205, 217 (2010) (“[I]t is not our task to assess the consequences of each approach and adopt the one that produces the least mis­ chief. Our charge is to give effect to the law Congress enacted”). In a removal proceeding, any difficulties with identifying an alien’s past conduct will fall on immigration judges, not federal courts. But those judges are already accustomed to finding facts about the conduct underlying an alien’s prior convictions, since some of the INA’s aggra­ vated felonies employ the underlying-conduct approach. The BIA has instructed immigration judges to determine such conduct based on “any evidence admissible in re- moval proceedings,” not just the elements of the offense or the record of conviction. See Matter of Babaisakov, 24 I. & N. Dec. 306, 307 (2007). No one has submitted any evidence that the BIA’s approach has been “utter[ly] impracti­ cab[le]” or “daunting[ly] difficul[t]” in practice. Ante, at 15. And even if it were, “how much time the agency wants to devote to the resolution of particular issues is . . . a question for the agency itself.” Ali v. Mukasey, 521 F.3d 737, 741 (CA7 2008). Hypothetical burdens on the BIA should not influence how this Court interprets §16(b). In short, we should not blithely assume that the reasons why this Court adopted the categorical approach for ACCA’s residual clause also apply to the INA’s list of aggravated felonies. As Nijhawan explained, “the ‘aggra­ vated felony’ statute, unlike ACCA, contains some lan­ guage that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” 557 U.S., at 38. “The question” in each case is “to which category [the aggra- vated felony] belongs.” Ibid. As I have explained, §16(b) Cite as: 584 U. S. ____ (2018) 31 THOMAS, J., dissenting belongs in the underlying-conduct category. Because that is the better reading of §16(b)’s text—or at least a reason­ able reading—the Court should have adopted it here. 3 I see no prudential reason for maintaining the categori­ cal approach for §16(b). The Court notes that the Gov­ ernment “explicitly acknowledges” that §16(b) employs the categorical approach. Ante, at 9. But we cannot permit the Government’s concessions to dictate how we interpret a statute, much less cause us to invalidate a statute en­ acted by a coordinate branch. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 446–447 (1993); Young v. United States, 315 U.S. 257, 258–259 (1942). This Court’s “traditional prac­ tice” is to “refus[e] to decide constitutional questions” when other grounds of decision are available, “whether or not they have been properly raised before us by the par­ ties.” Neese v. Southern R. Co., 350 U.S. 77, 78 (1955) (per curiam); see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1948–1949 (1997) (explaining that courts commonly “decide an antecedent statutory issue, even one waived by the parties, if its resolution could preclude a constitutional claim”). This Court has raised potential saving constructions “on our own motion” when they could avoid a ruling on constitutional vagueness grounds, even in cases where the Government was a party. United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921). We should have followed that established practice here. Nor should stare decisis prevent us from rejecting the categorical approach for §16(b). This Court has never held that §16(b) incorporates the ordinary-case approach. Although Leocal held that §16(b) incorporates a version of the categorical approach, the Court must not feel bound by that decision, as it largely overrules it today. See ante, at 22, n. 7. Surely the Court cannot credibly invoke stare 32 SESSIONS v. DIMAYA THOMAS, J., dissenting decisis to defend the categorical approach—the same approach it says only a “lunatic” would continue to apply. Ante, at 24. If the Court views the categorical approach that way—the same way Johnson viewed it—then it must also agree that “[s]tanding by [the categorical approach] would undermine, rather than promote, the goals that stare decisis is meant to serve.” 576 U. S., at ___ (slip op., at 15). That is especially true if the Court’s decision leads to the invalidation of scores of similarly worded state and federal statutes, which seems even more likely after today than it did after Johnson. Instead of adhering to an inter­ pretation that it thinks unconstitutional and then using that interpretation to strike down another statute, the Court should have taken this opportunity to abandon the categorical approach for §16(b) once and for all. * * * The Court’s decision today is triply flawed. It unneces­ sarily extends our incorrect decision in Johnson. It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have discarded long ago. Because I cannot follow the Court down any of these rab­ bit holes, I respectfully dissent.

I agree with THE CHIEF JUSTICE th8 U.S. C. as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in v. United States, 576 U. S. ACCA’s residual clause—a provision that this Court had applied four times before —was not unconstitu­ tionally vague either. See at (THOMAS, J., concur­ ring in judgment) (slip op., ); at – (ALITO, J., dissenting) (slip op., 3–17). But if the Court insists on adhering to it should at least take at its word that the residual clause was vague due to the “ ‘sum’ ” of its specific features. at (majority opinion) (slip op., at ). By ignoring this limitation, the Court jettisons ’s assurance that its holding would not jeopize “dozens of federal and state criminal laws.” at (slip op., 2). While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as 2 SESSIONS v. DIMAYA THOMAS, J., dissenting unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See at – (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that is unconstitutionally vague be­ cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Ac­ cordingly, I respectfully dissent. I I continue to harbor doubts about whether the vague­ ness doctrine can be squared with the original meaning of the Due Process Clause—and those doubts are only ampli­ fied in the removal context. I am also skeptical that the vagueness doctrine can be justified as a way to prevent delegations of core legislative power in this context. But I need not resolve these questions because, if the vagueness doctrine has any basis in the Due Process Clause, it must be limited to cases in which the statute is unconstitution­ ally vague as applied to the person challenging it. That is not the case for respondent, whose prior convictions for first-degree residential burglary in California fall comfort­ ably within the scope of A The Fifth Amendment’s Due Process Clause provides that no person shall be “deprived of life, liberty, or prop- erty, without due process of law.” Section 16(b), as incorpo­ rated by the INA, cannot violate this Clause unless the following propositions are true: The Due Process Clause requires federal statutes to provide certain minimal pro­ cedures, the vagueness doctrine is one of those procedures, and the vagueness doctrine applies to statutes governing the removal of aliens. Although I need not resolve any of these propositions today, each one is questionable. I will address them in turn. Cite as: 584 U. S. (2018) 3 THOMAS, J., dissenting 1 First, the vagueness doctrine is not legitimate unless the “law of the land” view of due process is incorrect. Under that view, due process “require[s] only that our Government proceed according to written constitu­ tional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson v. Colorado, 581 U. S. n. 1 (2017) (THOMAS, J., dissenting) (slip op., n. 1) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murray’s See (hold­ ing that the Due Process Clause “is a restraint on the legislative as well as on the executive and judicial powers of the government”). But the textual and historical sup­ port for the law-of-the-land view is not insubstantial.1 2 Even under Murray’s the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” at 277. That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].” at (opinion of THOMAS, J.) (Black, J., dissenting); Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 05, 41–43 (2011); Berger, “Law of the Land” Reconsid­ ered, 2–17 (1979); Corwin, The Doctrine of Due Process of Law Before the Civil War, 368–373 (1911); see also 4 The Papers of Alexander Hamilton 35 (Syrett & Cooke eds. 1962) (“The words ‘due process’ have a precise technical import, and can never be referred to an act of legislature”). 4 SESSIONS v. DIMAYA THOMAS, J., dissenting 11). That is not because Americans were unfamiliar with vague laws. Rather, early American courts, like their English predecessors, addressed vague laws through statutory construction instead of constitutional law. See Note, Void for Vagueness: An Escape From Statutory Interpretation, Ind. L. J. 272, 274–279 They invoked the rule of lenity and declined to apply vague penal statutes on a case-by-case basis. See 576 U. S., at – (opinion of THOMAS, J.) (slip op., at 7–); e.g., ante, at 5–6, and n. 1 (GORSUCH, J., concurring in part and concurring in judgment) (collecting cases).2 The mod­ ern vagueness doctrine, which claims the judicial author­ ity to “strike down” vague legislation on its face, did not emerge until the turn of the 20th century. See 576 U. S., at – (opinion of THOMAS, J.) (slip op., at 11–13). The difference between the traditional rule of lenity and —————— 2 Before the 19th century, when virtually all felonies were punishable by death, English courts would sometimes go to extremes to find a reason to invoke the rule of lenity. See Hall, Strict or Liberal Construc­ tion of Penal Statutes, ; e.g., ante, at 4– 7 (GORSUCH, J., concurring in part and concurring in judgment) (citing Blackstone’s discussion of a case about “cattle”). As the death penalty became less common, courts on this side of the Atlantic tempered the rule of lenity, clarifying that the rule requires an “ambiguity” in the text and cannot be used “to defeat the obvious intention of the legisla­ ture.” United Early American courts also declined to apply nonpenal statutes that were “unintelligible.” v. United States, 576 U. S. n. 3 (2014) (THOMAS, J., concurring in judgment) (slip op., at n. 3); e.g., ante, at 5–6, and n. 1 (opinion of GORSUCH, J.) (collecting cases). Like lenity, however, this practice reflected a principle of statutory construc­ tion that was much narrower than the modern constitutional vagueness doctrine. Unintelligible statutes were considered inoperative because they were impossible to apply to individual cases, not because they were unconstitutional for failing to provide “fair notice.” See 576 U. S., at n. 3 (opinion of THOMAS, J.) (slip op., at n. 3). Cite as: 584 U. S. (2018) 5 THOMAS, J., dissenting the modern vagueness doctrine is not merely semantic. Most obviously, lenity is a tool of statutory construction, which means States can abrogate it—and many have. Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 752–754 ; see also Scalia, Assorted Cans of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 583 )). The vagueness doctrine, by contrast, is a rule of constitutional law that States cannot alter or abolish. Lenity, moreover, applies only to “penal” statutes, 1 Blackstone, Commentaries on the Laws of England (1765), but the vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal, 576 U. S., at (opinion of THOMAS, J.) (slip op., at 6); see also Note, Indefinite Crite­ ria of Definiteness in Statutes, (1931) (explaining that the modern vagueness doctrine was not merely an “extension of the rule of strict construc­ tion of penal statutes” because it “expressly include[s] civil statutes within its scope,” reflecting a “regrettable disre­ g” for legislatures).3 In short, early American courts were not applying the modern vagueness doctrine by another name. They were engaged in a fundamentally different enterprise. Tellingly, the modern vagueness doctrine emerged at a time when this Court was actively interpreting the Due —————— 3 This distinction between penal and nonpenal statutes would be decisive here because, traditionally, civil deportation laws were not considered penal. See ; Fong Yue Al- though this Court has applied a kind of strict construction to civil deportation laws, that practice did not emerge until the mid-20th century. See Fong Haw 6 SESSIONS v. DIMAYA THOMAS, J., dissenting Process Clause to strike down democratically enacted laws—first in the name of the “liberty of contract,” then in the name of the “right to privacy.” See 576 U. S., at – (opinion of THOMAS, J.) (slip op., 3–16). That the vagueness doctrine “develop[ed] on the federal level concurrently with the growth of the tool of substan­ tive due process” does not seem like a coincidence. Note, Ind. L. J., Like substantive due process, the vagueness doctrine provides courts with “open-ended authority to oversee [legislative] choices.” v. Lawson, This Court, for example, has used the vagueness doctrine to invalidate antiloitering laws, even though those laws predate the Declaration of Independence. See at (opinion of THOMAS, J.) (slip op., at 7) ). This Court also has a bad habit of invoking the Due Process Clause to constitutionalize rules that were tradi­ tionally left to the democratic process. See, e.g., Williams v. Pennsylvania, 579 U. S. (2016); BMW of North America, ; Foucha v. Louisiana, ; cf. Montgomery v. Louisi- ana, 577 U. S. (2016). If vagueness is another example of this practice, then that is all the more reason to doubt its legitimacy. 3 Even assuming the Due Process Clause prohibits vague laws, this prohibition might not apply to laws governing the removal of aliens. Cf. 576 U. S., at n. 7 (opinion of THOMAS, J.) (slip op., 7, n. 7) (stressing the need for specificity when assessing alleged due process rights). The Founders were familiar with English law, where “ ‘the only question that ha[d] ever been made in reg to the power to expel aliens [was] whether it could be exercised by the King without the consent of Parlia­ Cite as: 584 U. S. (2018) 7 THOMAS, J., dissenting ment.’ ” U.S. 5, (O’Connor, J., concurring in part and concurring in judg­ ment) ). And, in this country, the notion that the Due Process Clause governed the removal of aliens was not announced until the 20th century. Less than a decade after the ratification of the Bill of Rights, the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the Alien Acts. One of those Acts, the Alien Friends Act, gave the President unfettered discretion to expel any aliens “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 machinations against the government thereof.” An Act Concerning Aliens This statute was modeled after the Aliens Act 1793 in England, which similarly gave the King unfettered discretion to expel aliens as he “shall think necessary for the publick Secur­ ity.” 33 Geo. III, ch. 4, in 39 Eng. Stat. at Large 16. Both the Fifth Congress and the States thoroughly de- bated the Alien Friends Act. Virginia and Kentucky enacted resolutions (anonymously drafted by Madison and Jeffer­ son) opposing the Act, while States enacted counter- resolutions condemning the views of Virginia and Ken­ tucky. See Fehlings, Storm on the Constitution: The First Deportation Law, Tulsa J. Comp. & Int’l L. 63, 85, 3 (2002). The Jeffersonian Democratic-Republicans, who viewed the Alien Friends Act as a threat to their party and the institution of slavery,4 raised a number of constitutional —————— 4 The Jeffersonian Democratic-Republicans who opposed the Alien Friends Act primarily represented slave States, and their party’s 8 SESSIONS v. DIMAYA THOMAS, J., dissenting objections. Some of the Jeffersonians argued that the Alien Friends Act violated the Fifth Amendment’s Due Process Clause. They complained that the Act failed to provide aliens with all the accouterments of a criminal trial. See, e.g., Kentucky Resolutions ¶6, in 4 The Debates in the Several Conventions on the Adoption of the Federal Constitution 541–542 (J. Elliot ed. 1836) (Elliot’s Debates); 8 Annals of Cong. 1982–1983 (1798) (statement of Rep. Gallatin); Madison’s Report on the Virginia Resolutions (Jan. 7, 1800), in 6 Writings of Madison –362 (G. Hunt ed. 1906) (Madison’s Report).5 The Federalists gave two primary responses to this due process argument. First, the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution. See, e.g., Randolph, Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, pp. 34– 35 (1850) (Virginia Debates) (statement of George K. ) (arguing that aliens “were not a party to the [Con­ stitution]” and that “cases between the government and —————— political strength came from the South. See Fehlings, Storm on the Constitution: The First Deportation Law, Tulsa J. Comp. & Int’l L. 63, 84 (2002). The Jeffersonians opposed any federal control over immigration, which their constituents feared would be used to pre-empt State laws that prohibited the entry of free blacks. at 84–85; see also Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 S. Ct. Rev. 9, 116 (“Whether pro- or anti-slavery, most southerners, including Jefferson and Madison were united behind a policy of denying to the national government any competence to deal with the question of slavery”). The fear was that “mobile free Negroes would intermingle with slaves, encourage them to run away, and foment insurrection.” I. Berlin, Slaves Without Masters 92 (1974). 5 The Jeffersonians also argued that the Alien Friends Act violated due process because, if aliens disobeyed the President’s orders to leave the country, they could be convicted of a crime and imprisoned without a trial. See, e.g., Kentucky Resolutions ¶6, 4 Elliot’s Debates 541. That charge was false. The Alien Friends Act gave federal courts jurisdiction over alleged violations of the President’s orders. See Cite as: 584 U. S. (2018) 9 THOMAS, J., dissenting aliens arise under the law of nations”); at 0 (statement of William Cowan) (identifying the source of rights “as to citizens, the Constitution; as to aliens, the law of nations”); A. Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 18 (1799) (Charge to the Grand Juries) (“[T]he Constitution leaves aliens, as in other countries, to the protection of the general principles of the law of na­ tions”); Answer to the Resolutions of the State of Ken­ tucky, Oct. 29, 1799, in 4 Records of the Governor and Council of the State of Vermont 528 (1876) (denying “that aliens had any rights among us, except what they derived from the law of nations, and rights of hospitality”). The law of nations imposed no enforceable limits on a nation’s power to remove aliens. See, e.g., 1 E. de Vattel, Law of Nations, pp. 8–9 (J. Chitty et al. transl. and ed. 13). Second, the Federalists responded that the expulsion of aliens “did not touch life, liberty, or property.” Virginia Debates 34. The founding generation understood the phrase “life, liberty, or property” to refer to a relatively narrow set of core private rights that did not depend on the will of the government. See Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. – (THOMAS, J., dissenting) (slip op., at 9–); Nelson, Adjudication in the Political Branches, 7 Colum. L. Rev. 559, 566–568 (Nelson). Quasi-private rights—“privileges” or “franchises” bestowed by the government on individuals— did not qualify and could be taken away without judicial process. See B&B Hware, Inc. v. Hargis Industries, Inc., 575 U. S. (THOMAS, J., dissenting) (slip op., 2); Nelson 567–569. The Federalists argued that an alien’s right to reside in this country was one such privilege. See, e.g., Virginia Debates 34 (arguing that “ordering away an alien was not a matter of right, but of favour,” which did not require a jury trial); Report of the SESSIONS v. DIMAYA THOMAS, J., dissenting Select Committee of the House of Representatives, Made to the House of Representatives on Feb. 21, 1799, 9 Annals of Cong. 2987 (1799) (stating that aliens “remain in the country merely as matter of favor and permission” and can be removed at any time without a criminal trial); Charge to the Grand Juries 11–13 (similar). According to the Minority Address of the Virginia Legislature (anony­ mously drafted by John Marshall), “[T]he right of remain­ ing in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn” without judicial process. Address of the Minority in the Virginia Legisla­ ture to the People of that State 9– (1799) (Virginia Minority Address). Unlike “a grant of land,” the “[a]dmission of an alien to residence is revocable, like a permission.” A. Addison, Analysis of the Report of the Committee of the Virginia Assembly (1800). Removing a resident alien from the country did not affect “life, lib­ erty, or property,” the Federalists argued, until the alien became a naturalized citizen. See 3–24; Charge to the Grand Juries 11–13. That the alien’s permanent residence was conferred by statute would not have made a difference. See Nelson 571, 580–582; Teva Pharmaceuti- cals USA, Inc. v. Sandoz, Inc., 574 U. S. n. 2 (THOMAS, J., dissenting) (slip op., at 9, n. 2). After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century. The States enacted their own removal statutes during this period, see G. Neuman, Strangers to the Constitution 19– 43 and I am aware of no decision questioning the legality of these statutes under State due-process or law­ of-the-land provisions. Beginning in the late 19th century, the Federal Government reinserted itself into the regula­ tion of immigration. When this Court was presented with constitutional challenges to Congress’ removal laws, it initially rejected them for many of the same reasons that Cite as: 584 U. S. (2018) 11 THOMAS, J., dissenting Marshall and the Federalists had cited in defense of the Alien Friends Act. Although the Court rejected the Feder­ alists’ argument that resident aliens do not enjoy constitu­ tional rights, see Wong Wing v. United States, U.S. 228, 8 (1896), it agreed that civil deportation statutes do not implicate “life, liberty, or property,” see, e.g., Harisi- (“[T]hat admission for permanent residence confers a ‘vested right’ on the alien [is] not founded in precedents of this Court”); United States ex rel. 290 (1904) (“[T]he deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law”); Fong Yue 149 U.S., at 730 (“[Deportation] is but a method of enforcing the return to his own country of an alien who has not complied with [statutory] conditions He has not, therefore, been deprived of life, liberty, or property without due process of law”); at 713–715 (similar). Consistent with this understanding, “federal immigration laws from 1891 until 1952 made no express provision for judicial review.” U.S., at It was not until the 20th century that this Court held that nonpenal removal statutes could violate the Due Process Clause. See Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). That ruling opened the door for the Court to apply the then-nascent vagueness doctrine to immigration statutes. But the Court upheld vague stand­ s in immigration laws that it likely would not have tolerated in criminal statutes. See, e.g., ; (“ ‘crime involving moral turpitude’ ”); cf. (“ ‘undesirable residents’ ”). Until today, this Court has never held that an immigration statute is unconstitution­ ally vague. Thus, for more than a century after the founding, it was, 12 SESSIONS v. DIMAYA THOMAS, J., dissenting at best, unclear whether federal removal statutes could violate the Due Process Clause. And until today, this Court had never deemed a federal removal statute void for vagueness. Given this history, it is difficult to conclude that a ban on vague removal statutes is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ances­ tors” protected by the Fifth Amendment’s Due Process Clause. Murray’s B Instead of a longstanding procedure under Murray’s perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically, the doctrine of nondelegation. See Chapman & McConnell, Due Pro­ cess as Separation of Powers, 121 Yale L. J. 1672, 1806 (2012) (“Vague statutes have the effect of delegating law­ making authority to the executive”). Madison raised a similar objection to the Alien Friends Act, arguing that its expansive language effectively allowed the President to exercise legislative (and judicial) power. See Madison’s Report 369–371. And this Court’s precedents have occa­ sionally described the vagueness doctrine in terms of nondelegation. See, e.g., v. City of Rockford, 408 U.S. 4, 8–9 (1972) (“A vague law impermissibly delegates basic policy matters”). But they have not been consistent on this front. See, e.g., (“ ‘The objectionable qual- ity of vagueness does not depend upon unchanneled delegation of legislative powers’ ”); (“Objections to vagueness under the Due Process Clause rest on the lack of notice”). I agree that the Constitution prohibits Congress from delegating core legislative power to another branch. See Department of Transportation v. Association of American Railroads, 575 U. S. () (THOMAS, J., Cite as: 584 U. S. (2018) 13 THOMAS, J., dissenting concurring in judgment) (slip op., at 3) (“Congress improp­ erly ‘delegates’ legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power”); accord, Whit- (2001) (THOMAS, J., concurring). But I locate that princi­ ple in the Vesting Clauses of Articles I, II, and III—not in the Due Process Clause. at – (opinion of THOMAS, J.) (slip op., –3); see also (Rehnquist, J., dis­ senting) (“[T]hat there was an improper delegation of authority has not previously been thought to depend upon the procedural requirements of the Due Process Clause”). In my view, impermissible delegations of legis­ lative power violate this principle, not just delegations that deprive individuals of “life, liberty, or property,” Amdt. 5. Respondent does not argue that as incorporated by the INA, is an impermissible delegation of power. See Brief for Respondent 50 (stating that “there is no delega­ tion question” in this case). I would not reach that ques­ tion here, because this case can be resolved on narrower grounds. See Part I–C, infra. But at first blush, it is not at all obvious that the nondelegation doctrine would jus­ tify wholesale invalidation of If delegates power in this context, it delegates power primarily to the Executive Branch entities that administer the INA—namely, the Attorney General, im­ migration judges, and the Bo of Immigration Appeals (BIA). But Congress does not “delegate” when it merely authorizes the Executive Branch to exercise a power that it already has. See at (opinion of THOMAS, J.) (slip op., at 3). And there is some founding- era evidence that “the executive Power,” Art. II, in­ cludes the power to deport aliens. Blackstone—one of the political philosophers whose 14 SESSIONS v. DIMAYA THOMAS, J., dissenting writings on executive power were “most familiar to the Framers,” Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 1, 253 (2001)—described the power to deport aliens as executive and located it with the King. Alien friends, Blackstone explained, are “liable to be sent home whenever the king sees occasion.” 1 Commentaries on the Laws of England 252 (1765). When our Constitution was ratified, moreover, “[e]minent Eng­ lish judges, sitting in the Judicial Committee of the Privy Council, ha[d] gone very far in supporting the expul­ sion, by the executive authority of a colony, of aliens.” U.S., at (quot­ ing Fong Yue ). Some of the Feder­ alists defending the Alien Friends Act similarly argued that the President had the power to remove aliens. See, e.g., Virginia Debates 35 (statement of George K. ) (arguing that the power to remove aliens is “most properly entrusted” with the President, since “[h]e, by the Constitu­ tion, was bound to execute the laws” and is “the executive officer, with whom all persons and bodies whatever were accustomed to communicate”); Virginia Minority Address 9 (arguing that the removal of aliens “is a measure of general safety, in its nature political and not forensic, the execution of which is properly trusted to the department which represents the nation in all its interior relations”); Charge to the Grand Juries 29–30 (“As a measure of na­ tional defence, this discretion, of expulsion or indulgence, seems properly vested in the branch of the government peculiarly charged with the direction of the executive powers, and of our foreign relations. There is in it a mix­ ture of external policy, and of the law of nations, that justifies this disposition”). More recently, this Court recognized that “[r]emoval decisions” implicate “our cus­ tomary policy of deference to the President in matters of foreign affairs” because they touch on “our relations with foreign powers and require consideration of changing Cite as: 584 U. S. (2018) 15 THOMAS, J., dissenting political and economic circumstances.” (internal quotation marks omitted). Taken together, this evidence makes it difficult to confidently conclude that the INA, through delegates core legislative power to the Executive. Instead of the Executive, perhaps impermissibly delegates power to the Judiciary, since the Courts of Ap­ peals often review the BIA’s application of I as­ sume that, at some point, a statute could be so devoid of content that a court tasked with interpreting it “would simply be making up a law—that is, exercising legislative power.” Lawson, Delegation and Original Meaning, Va. L. Rev. 327, 339 (2002); see at 339–340 (providing examples such as a gibberish-filled statute or a statute that requires “ ‘goodness and niceness’ ”). But I am not confident that our modern vagueness doctrine—which focuses on whether regulations of individual conduct provide “fair warning,” are “clearly defined,” and do not encourage “arbitrary and discriminatory enforcement,” 408 U.S., at 8; — accurately demarcates the line between legislative and judicial power. The Founders understood that the inter­ pretation of legal texts, even vague ones, remained an exercise of core judicial power. See Perez v. Mortgage Bankers Assn., 575 U. S. – (THOMAS, J., concurring in judgment) (slip op., at 8–9); Hamburger, The Constitution’s Accommodation of Social Change, Mich. L. Rev. 9, 303–3 Courts were expected to clarify the meaning of such texts over time as they applied their terms to specific cases. See at 309–3; Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 526 Although early American courts declined to apply vague or unintelligible statutes as ap­ propriate in individual cases, they did not wholesale inval­ idate them as unconstitutional delegations of legislative 16 SESSIONS v. DIMAYA THOMAS, J., dissenting power. See 576 U. S., at –, and n. 3 (opin­ ion of THOMAS, J.) (slip op., at –11, and n. 3). C 1 I need not resolve these historical questions today, as this case can be decided on narrower grounds. If the vagueness doctrine has any basis in the original meaning of the Due Process Clause, it must be limited to case-by­ case challenges to particular applications of a statute. That is what early American courts did when they applied the rule of lenity. See at (slip op., at ). And that is how early American courts addressed constitutional challenges to statutes more generally. See (“[T]here is good evidence that [antebellum] courts understood judicial review to consist ‘of a refusal to give a statute effect as operative law in resolving a case,’ a notion quite distinct from our modern practice of ‘ “strik[ing] down” legislation’ ” (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (20)). 2 This Court’s precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him. See Holder v. Humanitarian Law Project, (20); United ; 486 U.S., at ; Hoffman (collecting cases). did not overrule these prece­ dents. While weakened the principle that a facial challenge requires a statute to be vague “in all applica­ tions,” 576 U. S., at (slip op., 1) (emphasis added), it did not address whether a statute must be vague as applied to the person challenging it. That question did not arise because the Court concluded that ACCA’s residual Cite as: 584 U. S. (2018) 17 THOMAS, J., dissenting clause was vague as applied to the crime at issue there: unlawful possession of a short-barreled shotgun. See at (slip op., at 9). In my view, is not vague as applied to respond­ ent. When respondent committed his burglaries in and 2009, he was “sufficiently forewarned that the statutory consequence is deportation.” De George, 341 U.S., at At the time, courts had “unanimous[ly]” concluded that residential burglary is a crime of violence, and not “a single opinion ha[d] held that [it] is not.” United F.3d 1252, 1255–1256 ; see also United (explaining that treating residential burglary as a crime of violence was “[i]n accord with common law tradition and the settled law of the federal circuits”). Residential burglary “ha[d] been considered a violent offense for hundreds of years because of the potential for mayhem if burglar encounters resident.” United States v. Pinto, The Model Penal Code had recognized that risk, see ALI, Model Penal Code Comment 3(c), p. 75 (1980); the Sentencing Com­ mission had recognized that risk; see United States Sen­ tencing Commission, Guidelines Manual (Nov. 2006); and this Court had repeatedly recognized that risk, see, e.g., ; U.S. 575, In this Court unan­ imously agreed that burglary is the “classic example” of a crime of violence under because it “involves a substantial risk that the burglar will use force against a victim in completing the crime.” at That same risk is present with respect to respondent’s statute of conviction—first-degree residential burglary, Cal. Penal Code Ann. 460(a) The California Supreme Court has explained that the State’s burglary laws recognize “the dangers to personal safety 18 SESSIONS v. DIMAYA THOMAS, J., dissenting created by the usual burglary situation.” 958 P.2d 83, 89 (empha­ sis added). “ ‘[T]he fact that a building is used as a home increases such danger,’ ” which is why California ele­ vates residential burglary to a first-degree offense. People v. Rodriguez, Cal. App. 4th 121, 18 Cal. Rptr. 3d 550, 558 ; see also (“[T]he higher degree is intended to prevent those situations which are most dangerous, most likely to cause personal injury” (emphasis deleted)). Although unlawful entry is not an element of the offense, courts “unanimous[ly]” agree that the offense still involves a substantial risk of physical force. United 770 F.3d 10, 16 (CA4 2014); accord, United 696 F.3d 95, 12, 14 (CA 2012); United States v. Scanlan, 667 F.3d 896, 900 (CA7 2012); United (CA5 20); United States v. Becker, First-degree resi­ dential burglary requires entry into an inhabited dwelling, with the intent to commit a felony, against the will of the homeowner—the key elements that create the risk of violence. See United 11– 1180 (CA9 2011); 6–17; Becker, As this Court has explained, “[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.” at Drawing on and the decision below, the Court suggests that residential burglary might not be a crime of violence because “ ‘only about seven percent of burglaries actually involve violence.’ ” Ante, at 9, n. 3 ); see Bu­ reau of Justice S. Catalano, National Crime Cite as: 584 U. S. (2018) 19 THOMAS, J., dissenting Victimization Survey: Victimization During Household Burglary 1 (Sept. 20), https://www.bjs.gov/content/pub/ pdf/vdhb.pdf (as last visited Apr. 13, 2018). But this statistic—which measures actual violence against a mem­ ber of the household, see 12—is woefully underin­ clusive. It excludes other potential victims besides house­ hold members—for example, “a police officer, or a bystande[r] who comes to investigate,” at And requires only a risk of physical force, not actual physical force, and that risk would seem to be present whenever someone is home during the burglary. Further, is not conclusive because, unlike ACCA’s residual clause, covers offenses that involve a sub­ stantial risk of physical force “against the person or prop- erty of another.” (Emphasis added.) Surely the ordinary case of residential burglary involves at least one of these risks. According to the statistics referenced by the Court, most burglaries involve either a forcible entry (e.g., break­ ing a window or slashing a door screen), an attempted forcible entry, or an unlawful entry when someone is home. See Bureau of Justice (Table 1). Thus, under any metric, respondent’s convictions for first-degree residential burglary are crimes of violence under 3 Finally, if facial vagueness challenges are ever appro­ priate, I adhere to my view that a law is not facially vague “ ‘[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law.’ ” 527 U.S., 12 (THOMAS, J., dissenting) (quoting 461 U.S., at 370–371 ). The residual clause of ACCA had such a core. See 576 U. S., at (slip op., at ); at – (ALITO, J., dissenting) (slip 20 SESSIONS v. DIMAYA THOMAS, J., dissenting op., 4–15). And has an even wider core, as THE CHIEF JUSTICE explains. Thus, the Court should not have invalidated either on its face or as applied to respondent. II Even taking the vagueness doctrine and at face value, I disagree with the Court’s decision to invalidate The sole reason that the Court deems un­ constitutionally vague is because it reads the statute as incorporating the categorical approach—specifically, the “ordinary case” approach from ACCA’s residual clause. Although the Court mentions “[t]wo features” of that make it vague—the ordinary-case approach and an imprecise risk stand—the Court admits that the sec­ ond feature is problematic only in combination with the first. Ante, at 8. Without the ordinary-case approach, the Court “do[es] not doubt” the constitutionality of Ante, at But if the categorical approach renders unconsti­ tutionally vague, then constitutional avoidance requires us to make a reasonable effort to avoid that interpretation. And a reasonable alternative interpretation is available: Instead of asking whether the ordinary case of an alien’s offense presents a substantial risk of physical force, courts should ask whether the alien’s actual underlying conduct presents a substantial risk of physical force. I will briefly discuss the origins of the categorical approach and then explain why the Court should abandon it for A 1 The categorical approach originated with Justice Blackmun’s opinion for the Court in U.S. 575 The question in was whether ACCA’s reference to “burglary” meant burglary Cite as: 584 U. S. (2018) 21 THOMAS, J., dissenting as defined by state law or burglary in the generic sense. After “devoting pages of [its] opinion to legislative history,” (Scalia, J., concurring in part and concurring in judgment), and finding that Congress had made “an inadvertent casualty in [the] complex drafting process,” at 589–590 (majority opinion), the Court concluded that ACCA referred to burglary in the generic sense, The Court then addressed how the Government would prove that a defendant was convicted of generic burglary, as opposed to another offense. at 599–602. rejected the notion that the Government could introduce evidence about the “particular facts” of the defendant’s underlying crime. Instead, the Court adopted a “categorical approach,” which focused primarily on the “statutory definition of the prior offense.” Although was interpreting one of ACCA’s enu­ merated offenses, this Court later extended the categorical approach to ACCA’s residual clause. See 550 U.S., 08. That extension required some reworking. Because ACCA’s enumerated-offenses clause asks whether a prior conviction “is burglary, arson, or extortion,” 18 U.S. C. instructed courts to focus on the definition of the underlying crime. The residual clause, by contrast, asks whether a prior conviction “in­ volves conduct that presents a serious potential risk of physical injury to another.” Thus, the Court held that the categorical approach for the residual clause asks “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” 08 (emphasis added). This “ordinary case” approach allowed courts to apply the residual clause without inquir­ ing into the individual facts of the defendant’s prior crime. gave a few reasons why the categorical approach was the correct reading of ACCA, see U.S., – 22 SESSIONS v. DIMAYA THOMAS, J., dissenting 601, but the “heart of the decision” was the Court’s con­ cern with limiting the amount of evidence that the parties could introduce at sentencing. Specifically, the Court was wor­ ried about potential violations of the Sixth Amendment. If the parties could introduce evidence about the defendant’s underlying conduct, then sentencing proceedings might devolve into a full-blown minitrial, with factfinding by the judge instead of the jury. See 4–26; at 601. While this Court’s decision in Almendarez-Torres v. United States, 5 U.S. 224 allows judges to find facts about a defendant’s prior convictions, a full- blown minitrial would look “too much like” the kind of factfinding that the Sixth Amendment requires the jury to conduct. 544 U.S., 5. By construing ACCA to require a categorical approach, then, the Court was following “[t]he rule of reading statutes to avoid serious risks of unconstitutionality.” 2 I disagreed with the Court’s decision to extend the categorical approach to ACCA’s residual clause. See 550 U.S., 31– (dissenting opinion). The categorical approach was an “ ‘unnecessary exercise,’ ” I explained, because it created the same Sixth Amendment problem that it tried to avoid. 31. Absent waiver, a defendant has the right to have a jury find “every fact that is by law a basis for imposing or increasing punish­ ment,” including the fact of a prior conviction. Apprendi v. New Jersey, (THOMAS, J., concur­ ring). The exception recognized in Almendarez-Torres for prior convictions is an aberration, has been seriously undermined by subsequent precedents, and should be reconsidered. See Mathis v. United States, 579 U. S. (2016) (THOMAS, J., concurring) (slip op., ); Shep- 7–28 (THOMAS, J., concurring in part and Cite as: 584 U. S. (2018) THOMAS, J., dissenting concurring in judgment). In my view, if the Government wants to enhance a defendant’s sentence based on his prior convictions, it must put those convictions in the indictment and prove them to a jury beyond a reasonable doubt.6 B My objection aside, the ordinary-case approach soon created problems of its own. The Court’s attempt to avoid the Scylla of the Sixth Amendment steered it straight into the Charybdis of the Fifth. The ordinary-case approach that was created to honor the individual right to a jury is now, according to the Court, so vague that it deprives individuals of due process. I see no good reason for the Court to persist in reading the ordinary-case approach into The text of does not mandate the ordinary-case approach, the con­ cerns that led this Court to adopt it do not apply here, and there are no prudential reasons for retaining it. In my view, we should abandon the categorical approach for 1 The text of does not require a categorical ap­ The INA declares an alien deportable if he is —————— 6 The Sixth Amendment is, thus, not a reason to maintain the cate­ gorical approach in criminal cases. Contra, ante, 3–14 (plurality opinion). Even if it were, the Sixth Amendment does not apply in immigration cases like this one. See Part II–B–2, infra. The plurality contends that, if it must contort the text of to avoid a Sixth Amendment problem in criminal cases, then it must also contort the text of in immigration cases, even though the Sixth Amendment problem does not arise in the immigration context. See ante, 3–14, 15. But, as I have explained elsewhere, this “lowest common denomi­ nator” approach to constitutional avoidance is both ahistorical and illogical. See (dissent­ ing opinion). 24 SESSIONS v. DIMAYA THOMAS, J., dissenting “convicted of an aggravated felony” after he is admitted to the United States. 8 U.S. C. §7(a)(2)(A)(iii). Aggra­ vated felonies include “crime[s] of violence” as defined in §11(a)(43)(F). Section 16, in turn, defines crimes of violence as follows: “(a) an offense that has as an element the use, at­ tempted use, or threatened use of physical force against the person or property of another, or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” At first glance, is not clear about the precise question it poses. On the one hand, the statute might refer to the metaphysical “nature” of the offense and ask whether it ordinarily involves a substantial risk of physi­ cal force. On the other hand, the statute might refer to the underlying facts of the offense that the offender com­ mitted; the words “by its nature,” “substantial risk,” and “may” would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense. The text can bear either interpretation. See Nijhawan v. Holder, (“[I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like some­ times refer to a generic crime and sometimes refer to the specific acts in which an offender engaged on a specific occasion”). It is entirely natural to use words like “nature” and “offense” to refer to an offender’s actual underlying conduct.7 —————— 7 See, e.g., 18 U.S. C. (directing sentencing judges to con­ sider “the nature and circumstances of the offense”); Schware v. Bo of Bar Examiners of N. M., 353 U.S. (describing “the nature of the offense” committed by a bar applicant as “recruiting Cite as: 584 U. S. (2018) 25 THOMAS, J., dissenting Although both interpretations are linguistically possi­ ble, several factors indicate that the underlying-conduct approach is the better one. To begin, asks whether an offense “involves” a substantial risk of force. The word “involves” suggests that the offense must necessarily include a substantial risk of force. See The New Oxford Dictionary of English 962 (2001) (“include (something) as a necessary part or result”); Random House Dictionary of the English Language 05 (2d ed. 1987) (“1. to include as —————— persons to go overseas to aid the Loyalists in the Spanish Civil War”); TXO Production (O’Connor, J., dissenting) (describing “the nature of the offense at issue” as not “involving grave physical injury” but rather as a “busi­ ness dispute between two companies in the oil and gas industry”); United (Blackmun, J., dissenting) (describing “the nature of the charged offense” in terms of the specific facts alleged in the indictment); (“[T]he underlying factual basis for a conviction governs whether the offense ‘by its nature consti­ tutes a sexual offense against an individual who is less than 18 years of age.’ ” (quoting (e)(xi) (2006))); A Fix for Animal Abusers, Boston Herald, Nov. 22, 2017, p. 16 (“prosecutors were so horrified at the nature of his offense—his torture of a neighbor’s dog”); P. W, Attorney of Convicted Ex-Official Accuses Case’s Judge, Pittsburgh Post-Gazette, Nov. p. B1 (identifying the “nature of his offense” as “taking money from an elderly, widowed client, and giving it to campaign funds”); Cross-Burning–Article Painted an Inaccurate Picture of Young Man in Question, Seattle Times, Aug. 12, 1991, p. A9 (“[The defendant] took no steps to prevent the cross that was burned from being constructed on his family’s premises and later assisted in concealing a second cross This was the nature of his offense”); N. Libman, A Parole/Probation Officer Talks With Norma Libman, Chicago Tribune, May 29, 19, p. I31 (describing “the nature of the offense” as “not serious” if “there was no definitive threat on life” or if “the dollar- and cents- amount was not great”); E. Walsh, District– U. S. Argument Delays Warrant for Escapee’s Arrest, Washington Post, May 29, 1986, p. C1 (describing “the nature of Murray’s alleged of­ fenses” as “point[ing] at two officers a gun that was later found to con- tain one round of ammunition”). 26 SESSIONS v. DIMAYA THOMAS, J., dissenting a necessary circumstance, condition, or consequence”); Oxford American Dictionary 349 (1980) (“1. to contain within itself, to make necessary as a condition or result”). That condition is always satisfied if the Government must prove that the alien’s underlying conduct involves a sub­ stantial risk of force, but it is not always satisfied if the Government need only prove that the “ordinary case” involves such a risk. See 576 U. S., at (ALITO, J., dissenting) (slip op., 2). Tellingly, the other aggravated felonies in the INA that use the word “in­ volves” employ the underlying-conduct ap See 8 U.S. C. §11(a)(43)(M)(i) (“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $,000”); §11(h)(3) (“any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another”). As do the similarly worded provisions of the Comprehensive Crime Control Act of 1984, the bill that contained See, e.g., (elevating the burden of proof for the release of “a person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage”); 068 (establishing the sentence for drug offenses “involving” specific quantities and types of drugs); 137 (defining violent crimes in aid of racketeering to include “attempting or conspiring to com­ mit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury”). A comparison of and further highlights why the former likely adopts an underlying-conduct ap­ Section 16(a) covers offenses that have the use, attempted use, or threatened use of physical force “as an element.” Because covers “other” offenses and is separated from by the disjunctive word “or,” the natural inference is that asks a different question. Cite as: 584 U. S. (2018) 27 THOMAS, J., dissenting In other words, must require immigration judges to look beyond the elements of an offense to determine whether it involves a substantial risk of physical force. But if the elements are insufficient, where else should immigration judges look to determine the riskiness of an offense? Two options are possible, only one of which is workable. The first option is to consult the underlying facts of the alien’s crime and then assess its riskiness. This approach would provide a definitive answer in every case. And courts are already familiar with this kind of inquiry. Cf. at (slip op., 2) (noting that “doz­ ens” of similarly worded laws ask courts to assess “the riskiness of conduct in which an individual defendant engages on a particular occasion”). Nothing suggests that Congress imposed a more limited inquiry when it enacted in 1984. At the time, Congress had not yet enacted ACCA’s residual clause, this Court had not yet created the categorical approach, and this Court had not yet recog­ nized a Sixth Amendment limit on judicial factfinding at sentencing, see 555 U.S. 132 (ALITO, J., concurring in judgment). The second option is to imagine the “ordinary case” of the alien’s crime and then assess the riskiness of that hypothetical offense. But the phrase “ordinary case” does not appear in the statute. And imagining the ordinary case, the Court reminds us, is “hopeless[ly] indetermi­ na[te],” “wholly ‘speculative,’ ” and mere “guesswork.” Ante, at 7, 24 (quoting at – (slip op., at 5, 7)); see also at (opinion of ALITO, J.) (observing that the categorical approach is “nearly impossible to apply consistently”). Because courts disfavor interpretations that make a statute impossible to apply, see A. Scalia & B. Garner, Reading Law 63 (2012), this Court should reject the ordinary-case approach for and adopt the underlying-facts approach instead. 28 SESSIONS v. DIMAYA THOMAS, J., dissenting See at (ALITO, J., dissenting) (slip op., at ) (“When another interpretation is ready at hand, why should we assume that Congress gave the clause a meaning that is impossible—or even, exceedingly diffi­ cult—to apply”). 2 That the categorical approach is not the better reading of should not be surprising, since the categorical approach was never really about the best reading of the text. As explained, this Court adopted that approach to avoid a potential Sixth Amendment problem with sentenc­ ing judges conducting minitrials to determine a defend­ ant’s past conduct. But even assuming the categorical approach solved this Sixth Amendment problem in crimi­ nal cases, no such problem arises in immigration cases. “[T]he provisions of the Constitution securing the right of trial by jury have no application” in a removal proceeding. 194 U.S., 90. And, in criminal cases, the underlying-conduct approach would be perfectly constitu­ tional if the Government included the defendant’s prior conduct in the indictment, tried it to a jury, and proved it beyond a reasonable doubt. See 576 U. S., at (ALITO, J., dissenting) (slip op., 2). Nothing in prohibits the Government from proceeding this way, so the plurality is wrong to suggest that the underlying-conduct approach would necessarily “ping-pong us from one consti­ tutional issue to another.” Ante, 4. If constitutional avoidance applies here at all, it re­ quires us to reject the categorical approach for According to the Court, the categorical approach is uncon­ stitutionally vague. And, all agree that the underlying- conduct approach would not be. See 576 U. S., at (majority opinion) (slip op., 2) (“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative stand such as ‘substantial risk’ to real­ Cite as: 584 U. S. (2018) 29 THOMAS, J., dissenting world conduct”). Thus, if the underlying-conduct approach is a “reasonabl[e]” interpretation of it is our “plain duty” to adopt it. United States ex rel. Attorney General v. Delaware & Hudson Co., And it is reasonable, as explained above. In the Court declined to adopt the underlying- conduct approach for ACCA’s residual clause. See 576 U. S., at – (slip op., 2–13). The Court concluded that the categorical approach was the only reasonable reading of ACCA because the residual clause uses the word “convictions.” at (slip op., 3). The Court also stressed the “utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.” Neither of these arguments is persuasive with respect to the INA. Moreover, this Court has already rejected them. In Nijhawan, this Court unanimously concluded that one of the aggravated felonies in the INA—“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $,000,” §11(a)(43)(M)(i)—applies the underlying-conduct approach, not the categorical ap­ Although the INA also refers to “convict[ions],” §7(a)(2)(A)(iii), the Court was not swayed by that argument. The word “convict[ion]” means only that the defendant’s underlying conduct must “ ‘be tied to the specific counts covered by the conviction,’ ” not “acquitted or dismissed counts or general conduct.” at 42. As for the supposed practical problems with proving an alien’s prior conduct, the Court did not find that argu­ ment persuasive either. “[T]he ‘sole purpose’ of the ‘ag­ gravated felony’ inquiry,” the Court explained, “ ‘is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.’ ” And because the INA places the burden on the Government to prove an alien’s conduct by clear and convincing evidence, §9a(c)(3)(A), “uncertainties caused by the passage of 30 SESSIONS v. DIMAYA THOMAS, J., dissenting time are likely to count in the alien’s favor,” There are additional reasons why the practical problems identified in should not matter for —even assuming they should have mattered for ACCA’s residual clause, see (20) (“[I]t is not our task to assess the consequences of each approach and adopt the one that produces the least mis­ chief. Our charge is to give effect to the law Congress enacted”). In a removal proceeding, any difficulties with identifying an alien’s past conduct will fall on immigration judges, not federal courts. But those judges are already accustomed to finding facts about the conduct underlying an alien’s prior convictions, since some of the INA’s aggra­ vated felonies employ the underlying-conduct ap The BIA has instructed immigration judges to determine such conduct based on “any evidence admissible in re- moval proceedings,” not just the elements of the offense or the record of conviction. See Matter of Babaisakov, 24 I. & N. Dec. 306, 307 No one has submitted any evidence that the BIA’s approach has been “utter[ly] impracti­ cab[le]” or “daunting[ly] difficul[t]” in practice. Ante, at 15. And even if it were, “how much time the agency wants to devote to the resolution of particular issues is a question for the agency itself.” Ali v. Mukasey, 521 F.3d 737, 741 Hypothetical burdens on the BIA should not influence how this Court interprets In short, we should not blithely assume that the reasons why this Court adopted the categorical approach for ACCA’s residual clause also apply to the INA’s list of aggravated felonies. As Nijhawan explained, “the ‘aggra­ vated felony’ statute, unlike ACCA, contains some lan­ guage that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” “The question” in each case is “to which category [the aggra- vated felony] belongs.” As I have explained, Cite as: 584 U. S. (2018) 31 THOMAS, J., dissenting belongs in the underlying-conduct category. Because that is the better reading of ’s text—or at least a reason­ able reading—the Court should have adopted it here. 3 I see no prudential reason for maintaining the categori­ cal approach for The Court notes that the Gov­ ernment “explicitly acknowledges” that employs the categorical ap Ante, at 9. But we cannot permit the Government’s concessions to dictate how we interpret a statute, much less cause us to invalidate a statute en­ acted by a coordinate branch. See United States Nat. Bank of ; Young v. United States, 315 U.S. 257, 258–259 (1942). This Court’s “traditional prac­ tice” is to “refus[e] to decide constitutional questions” when other grounds of decision are available, “whether or not they have been properly raised before us by the par­ ties.” (per curiam); see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1948–1949 (1997) (explaining that courts commonly “decide an antecedent statutory issue, even one waived by the parties, if its resolution could preclude a constitutional claim”). This Court has raised potential saving constructions “on our own motion” when they could avoid a ruling on constitutional vagueness grounds, even in cases where the Government was a party. United We should have followed that established practice here. Nor should stare decisis prevent us from rejecting the categorical approach for This Court has never held that incorporates the ordinary-case ap Although Leocal held that incorporates a version of the categorical approach, the Court must not feel bound by that decision, as it largely overrules it today. See ante, at 22, n. 7. Surely the Court cannot credibly invoke stare 32 SESSIONS v. DIMAYA THOMAS, J., dissenting decisis to defend the categorical approach—the same approach it says only a “lunatic” would continue to apply. Ante, 4. If the Court views the categorical approach that way—the same way viewed it—then it must also agree that “[s]tanding by [the categorical approach] would undermine, rather than promote, the goals that stare decisis is meant to serve.” 576 U. S., at (slip op., 5). That is especially true if the Court’s decision leads to the invalidation of scores of similarly worded state and federal statutes, which seems even more likely after today than it did after Instead of adhering to an inter­ pretation that it thinks unconstitutional and then using that interpretation to strike down another statute, the Court should have taken this opportunity to abandon the categorical approach for once and for all. * * * The Court’s decision today is triply flawed. It unneces­ sarily extends our incorrect decision in It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have disced long ago. Because I cannot follow the Court down any of these rab­ bit holes, I respectfully dissent.

Justice Thomas

majority

Raytheon Co. v. Hernandez

https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/

https://www.courtlistener.com/api/rest/v3/clusters/131147/

2003-005

The Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, as amended, 42 U.S. C. § 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." § 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. 537 U.S. 1187 (2003). I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.[1] On July 11, 1991, respondent's appearance *47 and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a. More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. Id., at 13a-15a. Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. Id., at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction. Id., at 63a-64a. *48 Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote: "The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation. "The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations. . . . Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire." Id., at 19a-20a. This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." Id., at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." Id., at 95a. The EEOC issued a right-to-sue *49 letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U.S. C. §§ 12102(2)(B)-(C).[2] In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. Hernandez v. Hughes Missile Systems Co., 298 F.3d 1030, 1037, n. 20 (CA9 2002). In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[3] First, the Ninth Circuit found that with respect *50 to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction.[4] 298 F. 3d, at 1034-1035. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Id., at 1035. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. 411 U.S., at 802. Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason *51 for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." 298 F.3d, at 1036. The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application: "Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the `disability' and thus of the fact that she is committing an unlawful act. . . . Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA." Id., at 1036-1037. In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, non-discriminatory *52 reason under the ADA.[5] And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, supra, at 804. II This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that "`[d]isparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977). See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case "depends on whether the protected trait . . . actually motivated the employer's decision." Id., at 610. By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters, supra, at 335-336, n. 15. Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of *53 the employer's subjective intent to discriminate that is required in a `disparate-treatment' case." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, § 105, 105 Stat. 1074-1075, 42 U.S. C. § 2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U.S. C. § 12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes," Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252, n. 5 (1981), courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability. 298 F.3d, at 1037, n. 20. Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not *54 a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination.[6] The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity defense, 298 F.3d, at 1036-1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g., Grano v. Department of Development of Columbus, 637 F.2d 1073, 1081 (CA6 1980) ("In a disparate impact situation . . . the issue is whether a neutral selection device . . . screens out disproportionate numbers of [the protected class]").[7] By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was *55 terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability. The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." 298 F.3d, at 1036-1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER took no part in the decision of this case. JUSTICE BREYER took no part in the consideration or decision of this case.

The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S. C. 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.[1] On July 11, 1991, respondent's appearance *47 and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a. More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. at 13a-15a. Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction. at 63a-64a. *48 Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote: "The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation. "The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations. Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire." at 19a-20a. This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." at 95a. The EEOC issued a right-to-sue *49 letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U.S. C. 12102(2)(B)-(C).[2] In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas[3] First, the Ninth Circuit found that with respect *50 to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction.[4] -1035. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason *51 for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application: "Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the `disability' and thus of the fact that she is committing an unlawful act. Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA." In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, non-discriminatory *52 reason under the ADA.[5] And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, II This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that "`[d]isparate treatment' is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." See also Hazen Paper Liability in a disparate-treatment case "depends on whether the protected trait actually motivated the employer's decision." By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of *53 the employer's subjective intent to discriminate that is required in a `disparate-treatment' case." Wards Cove Packing superseded by statute on other grounds, Civil Rights Act of 1991, 105, -1075, 42 U.S. C. 2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U.S. C. 12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes," Texas Dept. of Community courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability. 298 F.3d, at Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not *54 a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination.[6] The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity -1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g.,[7] By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was *55 terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability. The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." -1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER took no part in the decision of this case. JUSTICE BREYER took no part in the consideration or decision of this case.

Justice White

majority

New York v. Ferber

https://www.courtlistener.com/opinion/110794/new-york-v-ferber/

https://www.courtlistener.com/api/rest/v3/clusters/110794/

1981-171

At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. I In recent years, the exploitive use of children in the production of pornography has become a serious national problem.[1] The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.[2] *750 New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its Penal Law. N. Y. Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance: "A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, *751 he consents to the participation by such child in a sexual performance." A "[s]exual performance" is defined as "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age." § 263.00(1). "Sexual conduct" is in turn defined in § 263.00(3): "`Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." A performance is defined as "any play, motion picture, photograph or dance" or "any other visual representation exhibited before an audience." § 263.00(4). At issue in this case is § 263.15, defining a class D felony:[3] "A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." To "promote" is also defined: "`Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same." § 263.00(5). A companion provision bans only the knowing dissemination of obscene material. § 263.10. This case arose when Paul Ferber, the proprietor of a Manhattan *752 bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating § 263.10 and two counts of violating § 263.15, the two New York laws controlling dissemination of child pornography.[4] After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under § 263.15, which did not require proof that the films were obscene. Ferber's convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court. 74 A.D. 2d 558, 424 N. Y. S. 2d 967 (1980). The New York Court of Appeals reversed, holding that §263.15 violated the First Amendment. 52 N.Y. 2d 674, 422 N.E.2d 523 (1981). The court began by noting that in light of § 263.10's explicit inclusion of an obscenity standard, § 263.15 could not be construed to include such a standard. Therefore, "the statute would . . . prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment." 52 N.Y. 2d, at 678, 422 N.E.2d, at 525. Although the court recognized the State's "legitimate interest in protecting the welfare of minors" and noted that this "interest may transcend First Amendment concerns," id., at 679, 422 N.E.2d, at 525-526, it nevertheless found two fatal defects in the New York statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which *753 "deal with adolescent sex in a realistic but nonobscene manner." 52 N.Y. 2d, at 681, 422 N.E.2d, at 526. Two judges dissented. We granted the State's petition for certiorari, 454 U.S. 1052 (1981), presenting the single question: "To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?" II The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in § 263.10, which follows the guidelines enunciated in Miller v. California, 413 U.S. 15 (1973),[5] constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that "nonobscene adolescent sex" could not be singled out for special treatment that the court found § 263.15 "strikingly underinclusive." Moreover, the assumption that the constitutionally permissible regulation of pornography could not be more extensive with respect to the distribution of material depicting children may also have led the court to conclude that a narrowing construction of § 263.15 was unavailable. The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children. *754 A In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id., at 571-572 (footnotes omitted). Embracing this judgment, the Court squarely held in Roth v. United States, 354 U.S. 476 (1957), that "obscenity is not within the area of constitutionally protected speech or press." Id., at 485. The Court recognized that "rejection of obscenity as utterly without redeeming social importance" was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the "universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 1956." Id., at 484-485 (footnotes omitted). Roth was followed by 15 years during which this Court struggled with "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (opinion of Harlan, J.). See, e. g., Redrup v. New York, 386 U.S. 767 (1967). Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that "the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities *755 of unwilling recipients or of exposure to juveniles." Miller v. California, supra, at 18-19 (footnote omitted); Stanley v. Georgia, 394 U.S. 557, 567 (1969); Ginsberg v. New York, 390 U.S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, supra, at 769; Jacobellis v. Ohio, 378 U.S. 184, 195 (1964). Throughout this period, we recognized "the inherent dangers of undertaking to regulate any form of expression." Miller v. California, supra, at 23. Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regnlation. In Miller v. California, supra, a majority of the Court agreed that a "state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Id., at 24. Over the past decade, we have adhered to the guidelines expressed in Miller,[6] which subsequently has been followed in the regulatory schemes of most States.[7] *756 B The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. First. It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological *757 well-being of a minor" is "compelling." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government's interest in the "well-being of its youth" justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern: "[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances." 1977 N. Y. Laws, ch. 910, § 1.[8] *758 We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating "child pornography." The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.[9] That judgment, we think, easily passes muster under the First Amendment. *759 Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.[10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if *760 not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.[11] Cf. United States v. Darby, 312 U.S. 100 (1941) (upholding federal restrictions on sale of goods manufactured in violation of Fair Labor Standards Act). Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow *761 that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value." Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.[12] Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.[13] "It rarely has been suggested that *762 the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).[14] We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.[15] Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance *763 or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.[16] Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children. Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. "The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech." Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (opinion of STEVENS, J., joined by BURGER, C. J., and WHITE and REHNQUIST, JJ.). See also FCC v. Pacifica Foundation, 438 U.S. 726, 742-748 (1978) (opinion of STEVENS, J., joined by BURGER, C. J., and REHNQUIST, J.). "[I]t is the content of [an] utterance that determines whether it is a protected epithet or an unprotected `fighting comment.'" Young v. American Mini Theatres, Inc., supra, at 66. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a libelous publication is not protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250 (1952). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs *764 the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment. C There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age.[17] The category of "sexual conduct" proscribed must also be suitably limited and described. The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution *765 of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. California, 361 U.S. 147 (1959); Hamling v. United States, 418 U.S. 87 (1974). D Section 263.15's prohibition incorporates a definition of sexual conduct that comports with the above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and represent the kind of conduct that, if it were the theme of a work, could render it legally obscene: "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." § 263.00(3). The term "lewd exhibition of the genitals" is not unknown in this area and, indeed, was given in Miller as an example of a permissible regulation. 413 U.S., at 25. A performance is defined only to include live or visual depictions: "any play, motion picture, photograph or dance . . . [or] other visual representation exhibited before an audience." § 263.00(4). Section 263.15 expressly includes a scienter requirement. We hold that § 263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally "underinclusive" about a statute that singles out this category of material for proscription.[18] It also follows that the State is not barred by *766 the First Amendment from prohibiting the distribution of unprotected materials produced outside the State.[19] III It remains to address the claim that the New York statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn. The New York Court of Appeals recognized that overbreadth scrutiny has been limited with respect to conductrelated regulation, Broadrick v. Oklahoma, 413 U.S. 601 (1973), but it did not apply the test enunciated in Broadrick because the challenged statute, in its view, was directed at "pure speech." The court went on to find that § 263.15 was fatally overbroad: "[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. *767 Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose." 52 N.Y. 2d, at 678, 422 N.E.2d, at 525. While the construction that a state court gives a state statute is not a matter subject to our review, Wainwright v. Stone, 414 U.S. 21, 22-23 (1973); Gooding v. Wilson, 405 U.S. 518, 520 (1972), this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state-court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. Bigelow v. Virginia, 421 U.S. 809, 817 (1975). By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution. A The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. Broadrick v. Oklahoma, supra, at 610; United States v. Raines, 362 U.S. 17, 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220 (1912). In Broadrick, we recognized that this rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U.S. 420, 429 (1961), and prudential limitations on constitutional adjudication.[20] In United States v. Raines, supra, at 21, we *768 noted the "incontrovertible proposition" that it "`would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,'" (quoting Barrows v. Jackson, 346 U.S. 249, 256 (1953)). By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule,[21] we face "flesh-and-blood"[22] legal problems with data "relevant and adequate to an informed judgment."[23] This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities. What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle and must be justified by "weighty countervailing policies." United States v. Raines, supra, at 22-23. The doctrine is predicated on the sensitive nature of protected expression: "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression." Village of Schaumburg v. *769 Citizens for a Better Environment, 444 U.S. 620, 634 (1980); Gooding v. Wilson, supra, at 521. It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); United States v. Raines, supra, at 21-22; Gooding v. Wilson, supra, at 521. The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is "strong medicine" and have employed it with hesitation, and then "only as a last resort." Broadrick, 413 U. S., at 613. We have, in consequence, insisted that the overbreadth involved be "substantial" before the statute involved will be invalidated on its face.[24] *770 In Broadrick, we explained the basis for this requirement: "[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech' toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175 (1969)." Id., at 615. We accordingly held that "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Ibid.[25] *771 Broadrick examined a regulation involving restrictions on political campaign activity, an area not considered "pure speech," and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in Broadrick, the requirement of substantial overbreadth extended "at the very least" to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of Broadrick is sound and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution. The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression.[26]*772 Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick: "We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine." Id., at 630. The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation.[27] This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New York's child pornography law and the situation faced by the Oklahoma state employees with respect to that State's restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute's scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381 (1977) (overbreadth analysis inapplicable to commercial speech). This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense *773 of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Parker v. Levy, 417 U.S. 733, 760 (1974). Indeed, the Court's practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction. Cantwell v. Connecticut, 310 U.S. 296 (1940); Edwards v. South Carolina, 372 U.S. 229 (1973). We recognize, however, that the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We simply hold that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth. B Applying these principles, we hold that § 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in § 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of § 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibition[s] of the genitals." Under these circumstances, § 263.15 is "not substantially overbroad and . . . whatever overbreadth may exist *774 should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." Broadrick v. Oklahoma, 413 U. S., at 615-616. IV Because § 263.15 is not substantially overbroad, it is unnecessary to consider its application to material that does not depict sexual conduct of a type that New York may restrict consistent with the First Amendment. As applied to Paul Ferber and to others who distribute similar material, the statute does not violate the First Amendment as applied to the States through the Fourteenth.[28] The judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. So ordered. JUSTICE BLACKMUN concurs in the result.

At issue in this case is the constitutionality of a New criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. I In recent years, the exploitive use of children in the production of pornography has become a serious national problem.[1] The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.[2] *750 New is one of the 20. In 1977, the New Legislature enacted Article 263 of its Penal Law. N. Y. Penal Law, Art. 263 Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance: "A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, *751 he consents to the participation by such child in a sexual performance." A "[s]exual performance" is defined as "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age." 263.00(1). "Sexual conduct" is in turn defined in 263.00(3): "`Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." A performance is defined as "any play, motion picture, photograph or dance" or "any other visual representation exhibited before an audience." 263.00(4). At issue in this case is 263.15, defining a class D felony:[3] "A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." To "promote" is also defined: "`Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same." 263.00(5). A companion provision bans only the knowing dissemination of obscene material. 263.10. This case arose when Paul Ferber, the proprietor of a Manhattan *752 bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating 263.10 and two counts of violating 263.15, the two New laws controlling dissemination of child pornography.[4] After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under 263.15, which did not require proof that the films were obscene. Ferber's convictions were affirmed without opinion by the Appellate Division of the New State Supreme Court. The New Court of Appeals reversed, holding that 263.15 violated the First Amendment. The court began by noting that in light of 263.10's explicit inclusion of an obscenity standard, 263.15 could not be construed to include such a standard. Therefore, "the statute would prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment." Although the court recognized the State's "legitimate interest in protecting the welfare of minors" and noted that this "interest may transcend First Amendment concerns," -526, it nevertheless found two fatal defects in the New statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which *753 "deal with adolescent sex in a realistic but nonobscene manner." Two judges dissented. We granted the State's petition for certiorari, presenting the single question: "To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?" II The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in 263.10, which follows the guidelines enunciated in[5] constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that "nonobscene adolescent sex" could not be singled out for special treatment that the court found 263.15 "strikingly underinclusive." Moreover, the assumption that the constitutionally permissible regulation of pornography could not be more extensive with respect to the distribution of material depicting children may also have led the court to conclude that a narrowing construction of 263.15 was unavailable. The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children. *754 A In the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Embracing this judgment, the Court squarely held in that "obscenity is not within the area of constitutionally protected speech or press." The Court recognized that "rejection of obscenity as utterly without redeeming social importance" was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the "universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 6." Roth was followed by 15 years during which this Court struggled with "the intractable obscenity problem." Interstate Circuit, See, e. g., Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that "the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities *755 of unwilling recipients or of exposure to juveniles." ; ; ; Interstate Circuit, ; ; Throughout this period, we recognized "the inherent dangers of undertaking to regulate any form of expression." Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regnlation. In a majority of the Court agreed that a "state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Over the past decade, we have adhered to the guidelines expressed in Miller,[6] which subsequently has been followed in the regulatory schemes of most States.[7] *756 B The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. First. It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological *757 well-being of a minor" is "compelling." Globe Newspaper "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In we sustained a New law protecting children from exposure to nonobscene literature. Most recently, we held that the Government's interest in the "well-being of its youth" justified special treatment of indecent broadcasting received by adults as well as children. The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New laws reflect this concern: "[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances." 1977 N. Y. Laws, ch. 910, 1.[8] *758 We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating "child pornography." The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.[9] That judgment, we think, easily passes muster under the First Amendment. *759 Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.[10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if * not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.[11] Cf. United Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow *761 that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material has a literary, artistic, political or social value." Memorandum of Assemblyman Lasher in Support of 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.[12] Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.[13] "It rarely has been suggested that *762 the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute."[14] We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.[15] Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance *763 or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.[16] Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children. Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. "The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech." See also "[I]t is the content of [an] utterance that determines whether it is a protected epithet or an unprotected `fighting comment.'" at See Leaving aside the special considerations when public officials are the target, New Times a libelous publication is not protected by the Constitution. (2). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs *764 the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment. C There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age.[17] The category of "sexual conduct" proscribed must also be suitably limited and described. The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution *765 of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. (9); D Section 263.15's prohibition incorporates a definition of sexual conduct that comports with the above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and represent the kind of conduct that, if it were the theme of a work, could render it legally obscene: "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." 263.00(3). The term "lewd exhibition of the genitals" is not unknown in this area and, indeed, was given in Miller as an example of a permissible A performance is defined only to include live or visual depictions: "any play, motion picture, photograph or dance [or] other visual representation exhibited before an audience." 263.00(4). Section 263.15 expressly includes a scienter requirement. We hold that 263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally "underinclusive" about a statute that singles out this category of material for proscription.[18] It also follows that the State is not barred by *7 the First Amendment from prohibiting the distribution of unprotected materials produced outside the State.[19] III It remains to address the claim that the New statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn. The New Court of Appeals recognized that overbreadth scrutiny has been limited with respect to conductrelated regulation, but it did not apply the test enunciated in because the challenged statute, in its view, was directed at "pure speech." The court went on to find that 263.15 was fatally overbroad: "[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. *767 Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose." While the construction that a state court gives a state statute is not a matter subject to our review, ; this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state-court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution. A The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. ; United ; ; Yazoo & M. V. R. 226 U.S. 7, 9-220 In we recognized that this rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, 3 U.S. 420, and prudential limitations on constitutional adjudication.[20] In United at we *768 noted the "incontrovertible proposition" that it "`would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,'" (quoting (3)). By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule,[] we face "flesh-and-blood"[22] legal problems with data "relevant and adequate to an informed judgment."[23] This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities. What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle and must be justified by "weighty countervailing policies." United at The doctrine is predicated on the sensitive nature of protected expression: "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression." Village of ; at 5. It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity. ; ; United at -22; at 5. The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is "strong medicine" and have employed it with hesitation, and then "only as a last resort." We have, in consequence, insisted that the overbreadth involved be "substantial" before the statute involved will be invalidated on its face.[24] *770 In we explained the basis for this requirement: "[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech' toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf." We accordingly held that "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Ibid.[25] *771 examined a regulation involving restrictions on political campaign activity, an area not considered "pure speech," and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in the requirement of substantial overbreadth extended "at the very least" to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of is sound and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution. The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression.[26]*772 Indeed, JUSTICE BRENNAN observed in his dissenting opinion in : "We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine." The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the [27] This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New 's child pornography law and the situation faced by the state employees with respect to that State's restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute's scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense *773 of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Indeed, the Court's practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction. ; We recognize, however, that the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We simply hold that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth. B Applying these principles, we hold that 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New as we have held, may constitutionally prohibit dissemination of material specified in 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibition[s] of the genitals." Under these circumstances, 263.15 is "not substantially overbroad and whatever overbreadth may exist *774 should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." 413 U. S., -616. IV Because 263.15 is not substantially overbroad, it is unnecessary to consider its application to material that does not depict sexual conduct of a type that New may restrict consistent with the First Amendment. As applied to Paul Ferber and to others who distribute similar material, the statute does not violate the First Amendment as applied to the States through the Fourteenth.[28] The judgment of the New Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. So ordered. JUSTICE BLACKMUN concurs in the result.

Justice White

majority

Federal Maritime Comm'n v. Pacific Maritime Assn.

https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/

https://www.courtlistener.com/api/rest/v3/clusters/109808/

1977-043

Section 15 of the Shipping Act, 1916, 39 Stat. 733, as amended, 46 U.S. C. § 814,[1] requires the filing with the *43 Federal Maritime Commission (Commission) of seven categories of agreements between a common carrier by water, or "other person subject to this chapter" and another such carrier *44 or person.[2] Among those agreements that must be filed are those "controlling, regulating, preventing, or destroying competition." The Commission is empowered to "disapprove, cancel, or modify" any such agreement that it finds to be "unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, . . . or to operate to the detriment *45 of the commerce of the United States, or to be contrary to the public interest . . ." and is directed to approve all filed agreements that do not transgress these standards. Before approval or after disapproval, agreements subject to filing are unlawful and may not be implemented.[3] Agreements that are "lawful under this section" are excepted from those provisions of the antitrust laws contained in §§ 1-11 and 15 of Title 15 of the United States Code. Violations of the section are punishable by civil fines of not more than $1,000 per day. The issue in this case is whether § 15 of the Shipping Act requires the filing and the Commission's approval or disapproval of a collective-bargaining agreement between respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit made up of various employers of Pacific coast dockworkers,[4] and respondent International Longshoremen's and Warehousemen's Union (Union). I This case arose when eight municipal corporations, owners and operators of Pacific coast port facilities and not members of the PMA,[5] filed a petition with the Commission asserting that a 1972 agreement between PMA and the Union was subject to filing and approval under § 15 and was violative of §§ 15, 16, and 17 of the Shipping Act[6] because it was unjust, *46 discriminatory, and contrary to the public interest. Prior to this time, the nonmember ports had negotiated separate agreements with the Union which contained terms and conditions that in some respects differed from those contained in the collective-bargaining contracts between PMA and the Union. Fringe-benefit provisions varied, depending on the result of individual negotiations.[7] In some respects the ports enjoyed more flexible work rules than did PMA; the ports, for example, were often permitted to use "steady crews," whereas, under the PMA contract, rotation of workers among employers was the general rule.[8] The existence of separate agreements between the Union and the public ports also enabled the Union to exert negotiating pressure on PMA by striking PMA while continuing to work for the individual ports. The ports, nevertheless, were permitted by virtue of separate agreements with PMA to secure their work force through the PMA-Union hiring halls[9] and to make the particular fringe-benefit payments *47 called for by their individual contracts by contributing to the fringe-benefit funds maintained by PMA.[10] During contract negotiations between PMA and the Union beginning in November 1970, one of the issues raised was whether nonmembers should continue to be allowed to participate in PMA hiring-hall and fringe-benefit plans. These privileges PMA desired to eliminate.[11] Ultimately, the parties arrived at a Supplemental Memorandum of Understanding described as follows by the court below: "In the Supplemental Memorandum the parties agreed that PMA would accept contributions from all nonmembers who executed a uniform participation agreement. This standard agreement, included in the Supplemental Memorandum, would require nonmembers, as a condition of using the joint dispatching halls for jointly registered employees, to participate in all fringe benefit programs, pay the same dues and assessments as PMA members, use steady men `in the same way a member may do so,' and be treated as a member during work stoppages." 177 U. S. App. D. C. 248, 250-251, 543 F.2d 395, 397-398 (1976) (footnotes omitted).[12] *48 It was this agreement that the public ports asserted was subject to filing and Commission action under § 15. In October 1972, the Commission severed for initial determination *49 the issues of its jurisdiction over the challenged agreement, and, if the Supplemental Memorandum of Understanding was otherwise covered by § 15, whether there were considerations rooted in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of the section. Thereafter, on June 24, 1973, PMA and the Union arrived at a new collective-bargaining agreement, which included a revised nonmember participation agreement replacing the Supplemental Memorandum of Understanding. By additional order, the Commission extended its jurisdictional inquiry to include the new contract with its nonmember participation provisions, which, although revised, were deemed by the Commission to have essentially the same impact for present purposes as the Supplemental Memorandum of Understanding. In its subsequent report and order, Pacific Maritime Assn.— Cooperative Working Arrangements, 18 F. M. C. 196 (1975), the Commission first rejected the suggestion that because the case called for accommodating the Shipping Act and the labor statutes, as well as determining whether the parties had exceeded the scope of legitimate bargaining, the Commission should not itself decide the issue but should defer to the courts or to the National Labor Relations Board.[13] The Commission *50 also rejected the argument, as it had rejected similar arguments in New York Shipping Assn.—NYSA-ILA Man-Hour/Tonnage Method of Assessment, 16 F. M. C. 381 (1973), aff'd, 495 F.2d 1215 (CA2), cert. denied, 419 U.S. 964 (1974), that § 15's filing requirement was not triggered because some members of PMA were neither carriers nor "other persons subject to the act" or because PMA's contract was with a labor union, which also was neither a carrier nor "other person."[14] The Commission went on to find that the purpose of the nonmember participation agreement was to place nonmembers on the same competitive basis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. The Commission concluded that the agreement was thus subject to filing and approval or disapproval under § 15, unless, because it was part of a collective-bargaining contract, it fell within that category of contracts that the national labor policy placed beyond the reach of the Shipping Act. The Commission had recognized this so-called "labor exemption" in United Stevedoring Corp. v. Boston Shipping Assn., 16 F. M. C. 7 (1972), and it proceeded *51 to adjudicate the status of the instant agreement under the criteria announced in that case.[15] The Commission's ultimate conclusion was that the nonmember participation agreement was not entitled to exemption from filing under § 15, primarily because its thrust was to *52 bring nonmembers into parity with members by requiring employers outside the bargaining unit to submit to bargaining-unit terms. The result had "a potentially severe and adverse effect upon competition," 18 F. M. C., at 208, and only a superficial effect on the collective-bargaining process. The agreement was thus subject to filing and approval under § 15. The Court of Appeals for the District of Columbia Circuit set aside the Commission's order, holding that the disputed agreement was wholly beyond the Commission's jurisdiction under § 15. 177 U. S. App. D. C. 248, 543 F.2d 395 (1976). The Commission's approach, which extends to labor agreements an exemption from Shipping Act requirements roughly equivalent to the exemption from the antitrust laws that the courts hold the labor statutes require for collective-bargaining contracts, was deemed an inadequate response to the demands of the national labor policy. Without disturbing the Commission's conclusion that the purpose and effect of the nonmember participation agreement at issue here were "to control or affect competition between members and nonmembers," 18 F. M. C., at 201, and hence that it was within the literal terms of § 15, and without holding that the agreement would qualify for an antitrust exemption under the relevant cases, the Court of Appeals ruled that any collective-bargaining contract, whatever its impact on competition, was exempt from filing with the Commission. Alternatively, the Court of Appeals held that, even if its per se rule excluding collective-bargaining agreements from the reach of § 15 was infirm, the Commission had erred in refusing to exempt from filing the particular nonmember participation agreement in question here. We granted the petition for certiorari filed by the United States and the Commission, 430 U.S. 905 (1977), which raises two issues: whether the national labor policy requires exempting collective-bargaining contracts as a class from the filing *53 requirements of § 15 and, if not, whether the agreement at issue here is nevertheless exempt from those requirements. II We cannot agree with the holding below that, whatever their effect on competition might be, collective-bargaining contracts are categorically exempt from the filing requirements of § 15 of the Shipping Act. Section 15 on its face reaches any contract between carriers "controlling, regulating, preventing, or destroying competition." If a contract is of that nature, it is within the reach of § 15 and subject to the Commission's jurisdiction, and it is quite untenable to suggest that collective-bargaining contracts never control, regulate, prevent, or destroy competition. See Mine Workers v. Pennington, 381 U.S. 657 (1965); Allen Bradley Co. v. Electrical Workers, 325 U.S. 797 (1945). If subject to § 15, a filed agreement must be approved by the Commission unless it is discriminatory or unfair, operates to the detriment of the commerce of the United States, or is contrary to the public interest. Because § 15 provides that an approved agreement will not be subject to the antitrust laws, it is apparent that Congress assigned to the Commission, not to the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines. It is equally apparent that as a substantive matter, Congress anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry. That the Commission is the public arbiter of competition in the shipping industry is reflected in prior holdings that in reaching its decision under § 15 the Commission must "consider the antitrust implications of an agreement before approving it," FMC v. Seatrain Lines, Inc., 411 U.S. 726, 739 (1973), and should approve an anticompetitive agreement only if it is "`required by a serious transportation need, necessary *54 to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.'" FMC v. Svenska Amerika Linien, 390 U.S. 238, 243 (1968). The Commission, nevertheless, may approve agreements "even though they are violative of the antitrust laws . . . ." Seatrain, supra, at 728. The removal of the task of initially overseeing private restraints on competition from the regime of the antitrust laws and the courts is not a historical anachronism that we are entitled to ignore. Congress responded to Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481 (1958), which held that a particular system of dual rates adopted by a shipping conference violated § 14 of the Shipping Act, by suspending the effect of that decision pending full study and permanent legislation. After extensive investigation, important amendments were forthcoming in 1961, Pub. L. 87-346, 75 Stat. 763; but the Act's basic approach—that the regulation of competition in the shipping industry is to be an administrative function, subject to judicial review—was reaffirmed. Indeed, § 15 was amended "by enlarging and clarifying the [Commission's] powers over agreements filed thereunder" by, among other things, the addition of the public interest standard to § 15. H. R. Rep. No. 498, 87th Cong., 1st Sess., 17-18 (1961). Section 15 was declared by the Antitrust Subcommittee of the House Judiciary Committee, which undertook a three-year study of "the entire gamut of antitrust problems in the ocean freight industry . . . ," to be "the heart of the Shipping Act." H. R. Rep. No. 1419, 87th Cong., 2d Sess., 2, 15 (1962). It is appropriate, therefore, that the Court has recognized the broad reach of § 15 and resisted improvident attempts to narrow it. In Volkswagenwerk v. FMC, 390 U.S. 261 (1968), a collective-bargaining agreement between PMA and the Union included a provision requiring PMA to create a sizable fund to be used to mitigate the impact of technological unemployment upon employees. PMA reserved the right to *55 determine how the fund was to be raised, and thereafter it settled upon a particular method by which its members would contribute to the fund. The issue then arose whether this latter agreement was within the Commission's jurisdiction under § 15. The Commission held that, although the assessment formula arrived at was within the literal language of the section, it was exempt from filing since § 15 should be applied only to those agreements that affect competition among the carriers in their dealings with the shipping and traveling public.[16] The Court of Appeals affirmed; but we reversed, rejecting the Commission's "extremely narrow view of a statute that uses expansive language." 390 U.S., at 273. In response to the Commission's expressed desire to read § 15 narrowly in order to minimize the antitrust exemption, we noted that "antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved . . . ," 390 U.S., at 273, and that "in deciding whether to approve an agreement, the Commission is required under § 15 to consider antitrust implications." Id., at 273-274. Hence, "[t]o limit § 15 agreements that `affect competition,' as the Commission used that phrase . . . simply [did] not square with the structure of the statute," id., at 275, and "would [render] virtually meaningless" major parts of § 15's filing provisions. 390 U.S., at 275 n. 23. Because Volkswagenwerk dealt only with the agreed-upon assessment formula, the Court noted that no question had been raised about the validity of the underlying collective-bargaining contract. The opinion does not, therefore, determine one way or the other whether collective-bargaining contracts are ever within the reach of § 15; but the Court did *56 emphasize the breadth of the statutory language and the determination of Congress, reflected in § 15, to "subject to the scrutiny of a specialized governmental agency the myriad of restrictive agreements in the maritime industry." 390 U.S., at 276. At the very least, the opinion counsels against implying broad exemptions for agreements, collective-bargaining contracts or otherwise, whose impact on competition is "neither de minimis nor routine." Id., at 277. In the present case, the Court of Appeals' removal from the Commission's jurisdiction of all collective-bargaining contracts, regardless of how anticompetitive they might be, and whether or not exempt under the antitrust laws, would appear to be contrary to the plain terms of § 15. The Court of Appeals was not unaware that it was depriving the Commission of the power to approve or disapprove anticompetitive contracts that § 15 on its face clearly confers, but it thought its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labor-management relations, including those in the shipping industry. While there is no doubt that the courts must give all due effect to each of two seemingly overlapping statutes, we think the Court of Appeals misconceived its task here. The principal objection to Commission jurisdiction over any bargaining agreement was that under § 15 agreements subject to filing cannot be implemented prior to approval or after disapproval. This alone was enough to exempt collective-bargaining contracts from filing under § 15, for, as the Court of Appeals understood the collective-bargaining system mandated by the National Labor Relations Act, one of its essential elements is for the parties to be legally free "to implement promptly the compromise agreements worked out in eleventh-hour bargaining sessions . . . ." 177 U. S. App. D. C., at 259, 543 F.2d, at 406. Subjecting negotiated labor agreements to filing and approval "would make nearly impossible the maintenance or prompt restoration of industrial peace." Ibid. *57 Prompt implementation of lawful collective-bargaining agreements is indeed an important consideration, but the fears of the Court of Appeals as to the possible impact of the Commission's decision on the collective-bargaining process are exaggerated and do not justify the major surgery performed on § 15 by the decision below. In the first place, the Commission's decision would not require the filing of all or even most of the collective-bargaining contracts entered into in the shipping industry. Because § 15 applies only to agreements between at least two parties subject to the Act, see n. 1, supra, collective-bargaining contracts between the Union and a single employer would not have to be filed. Moreover, not all collective-bargaining agreements between the Union and PMA would be subject to the requirements of § 15. Under § 15, filed agreements must be approved unless they operate to the detriment of commerce, are contrary to the public interest, or otherwise fail to satisfy the specified standards. Under these standards, it would be difficult to conclude that ordinary collective-bargaining agreements establishing wages, hours, and working conditions in a bargaining unit could or would be disapproved as contrary to the public interest or detrimental to commerce. Such contracts are the product of bargaining compelled by the labor laws, which themselves were enacted pursuant to the power of Congress to regulate commerce in the public interest. They are also the kind of contracts that the courts, because of the collective-bargaining regime established by the labor laws, in the main have declared to be beyond the reach of the antitrust laws, the statutes specifically designed to protect the commerce of the United States from anticompetitive restraints. The Commission has recognized that the vast majority of collective-bargaining arrangements cannot be deemed candidates for disapproval under § 15 and that they would be routinely approved even if filed. Consistent with its power under § 35 of the Shipping Act, 39 Stat. 738, as added, 80 Stat. *58 1358, 46 U.S. C. § 833a, in appropriate circumstances to exempt from § 15 filing requirements "any class of agreements between persons subject to this chapter or any specified activity of such persons . . . ,"[17] the Commission, by adjudication, has determined that it will recognize a "labor exemption" from the filing requirements of § 15 for collective-bargaining contracts falling within the boundaries of the exemption defined by its announced criteria.[18] In doing so, the Commission has been guided by its understanding of our cases, and those of other courts, that recognize and define an exemption from the antitrust laws for certain contracts between management and labor. It appears to be the intention of the Commission to exercise jurisdiction over only those collective-bargaining contracts that in its view would not be exempt from examination under antitrust laws and that should be reviewed under Shipping Act standards. We therefore doubt that the Commission's decision will have a broad impact on labor-management relations. At least, it has not been demonstrated at this juncture that the collective-bargaining concerns cited by the Court of Appeals are sufficient to require complete exemption for labor agreements and the consequent partial emasculation of the statutory scheme for administrative review of anticompetitive agreements. *59 Second, the Commission, in any event, claims the authority, which it has exercised, see New York Shipping Assn.—NYSA-ILA Man-Hour/Tonnage Method of Assessment, 16 F. M. C. 381 (1973), aff'd, 495 F.2d 1215 (CA2), cert. denied, 419 U.S. 964 (1974), to issue conditional approval of filed agreements pending final decision as to their legality; and it is not clear why this mechanism is not amply responsive to the fears of undue delay or why its adequacy should now be debated since the parties could have, but did not, request early, conditional approval. The Court of Appeals did not deny that the Commission could permit implementation of filed agreements prior to a final decision, but it thought the mechanism only a partial alleviation of the problem since the parties still would face the "specter" of a later administrative invalidation of perhaps a crucial part of a collective-bargaining contract. But it is not immediately obvious why provisions of a collective-bargaining contract that appear obviously illegal to the Commission should be immediately implemented pending final decision. Furthermore, if a collective-bargaining contract having serious anticompetitive aspects is not subject to filing under § 15, as the Court of Appeals would have it, the parties would in any event face the uncertainty of possible invalidation and of treble damages after long and difficult litigation in an antitrust court. At least under § 15, it would be possible that an anticompetitive collective-bargaining contract that would not survive scrutiny under the antitrust laws could be approved by the Commission, if it served important regulatory goals, and hence would be insulated from antitrust attack. Indeed, a critical aspect of the regulatory plan devised by Congress is the requirement of administrative judgment with respect to all of the specified contracts required to be filed. It was therefore error for the Court of Appeals to hold that the legality of collective-bargaining contracts, challenged as anti-competitive and nonexempt, must be judicially determined under the antitrust laws without interposition of the administrative *60 judgment and without regard for Shipping Act considerations. III The Court of Appeals also ruled that even absent a blanket exemption from § 15 for collective-bargaining agreements, the Commission should not have exercised § 15 jurisdiction in this case but should have exempted the nonmember participation agreement from filing. In doing so, the court appeared to disagree with the Commission's weighing of the impact on shipping interests of holding the agreement exempt against the impact on collective-bargaining interests of requiring filing and approval under § 15. Perhaps because under the Act this kind of comparison must be the business of the Commission if all collective agreements are not exempt, the Court of Appeals offered little to support this alternative judgment. It suggested that the Commission had failed to realize that the nonmember participation agreement in the last analysis was merely an effort to force the public ports into a multiemployer bargaining unit against their will, an issue clearly within the National Labor Relations Board's authority and one in which the Commission should not intermeddle. The argument is wide of the mark. The Commission has not challenged the power of the Board to determine bargaining units; neither the Commission nor the parties have authority to change a unit certified by the Board. Rather than relying on the Board to resolve any bargaining-unit problem, if there was one, PMA and the Union agreed to impose bargaining-unit terms on employers outside the unit. Furthermore, the Court of Appeals recognized that the "Supreme Court has ruled against primary jurisdiction in the NLRB for anticompetitive agreements," 177 U. S. App. D. C., at 263, 543 F.2d, at 410, but went on to conclude that we had removed from all primary administrative cognizance the entire question of accommodating collective-bargaining considerations and the public interest in competition. We doubt that our *61 opinions should be so broadly read. Congress has not authorized the NLRB to police, modify, or invalidate collective-bargaining contracts aimed at regulating competition or to insulate bargaining agreements from antitrust attack. But here, as we have said, Congress took the different course of committing to the Commission the initial task of approving or disapproving all agreements that control, regulate, prevent, or destroy competition. However much the courts might consider this to be a judicial function, particularly when it is necessary to accommodate the possibly conflicting policies of the labor and shipping laws, we have no warrant to ignore congressional preferences written into § 15 of the Shipping Act. IV Although the Court of Appeals did not otherwise challenge the content or application of the Commission's guidelines for resolving issues as to its jurisdiction over collective-bargaining agreements, the respondents urge that the Commission has misread the relevant cases. In particular, they fault the Commission's findings with respect to the competitive impact of the nonmember participation agreement and the failure to find that the terms under challenge constituted serious antitrust violations. These submissions are unsound. It is plain from our cases that an antitrust case need not be tried and a violation found before a determination can be made that a collective-bargaining agreement is not within the labor exemption, just as it is clear that denying the exemption does not mean that there is an antitrust violation.[19] Insofar as the asserted exemption for collective-bargaining contracts is concerned, *62 the Commission found all it needed to find to assume jurisdiction and proceed with the case under § 15 when it concluded that PMA and the Union had undertaken to impose employment terms and conditions on employers outside the bargaining unit. As we have previously observed: "[T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry." "[A] union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units." Mine Workers v. Pennington, 381 U. S., at 665-666. Here, both the Commission and the Court of Appeals understood the nonmember participation agreement to require nonmembers to participate in all fringe-benefit plans agreed upon between the PMA and the Union, to observe PMA-determined labor policies in the event of a work stoppage, and to observe the same work rules with respect to the hiring-hall work force. The result, the Commission found, would be higher costs for nonmembers and the elimination of what the PMA considered to be "a competitive disadvantage" to its members.[20] Accordingly, the Commission was warranted in finding that "the purpose of the supplemental agreement *63 [was] . . . to place nonmembers on the same `competitive' basis as members of the PMA." 18 F. M. C., at 201. We are thus unpersuaded that the Commission did not make the requisite findings to sustain its view. Nor are we impressed with other arguments that in one guise or another are contentions that the Commission, for lack of ability and experience, should not purport to deal with any collective-bargaining agreement but should leave the entire matter of anticompetitive labor-management contracts to the courts and the antitrust laws. As we have said, Congress has made the Commission the arbiter of competition in the shipping industry; and if there are labor agreements so anticompetitive that they are vulnerable under the antitrust laws, it is difficult to explain why the Commission should not deal with them in the first instance and either approve or disapprove them under the standards specified in § 15. In summary, we think the Commission was true to § 15 and that it has also demonstrated its sensitivity to the national labor policy by exempting from the filing requirements all collective-bargaining contracts that in its view would also be exempt from the antitrust laws. Because the Commission also has the power to approve filed agreements, even though anticompetitive, the Commission may also take into account any special needs of labor-management relationships in the shipping industry. We should add that since the Shipping Act contains its own standards for exempting and for approving and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collective-bargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts. *64 The judgment of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR.

Section 5 of the Shipping Act, 96, as amended, 46 U.S. C. 84,[] requires the filing with the *43 Federal Maritime Commission (Commission) of seven categories of agreements between a common carrier by water, or "other person subject to this chapter" and another such carrier *44 or person.[2] Among those agreements that must be filed are those "controlling, regulating, preventing, or destroying competition." The Commission is empowered to "disapprove, cancel, or modify" any such agreement that it finds to be "unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or to operate to the detriment *45 of the commerce of the United States, or to be contrary to the public interest" and is directed to approve all filed agreements that do not transgress these standards. Before approval or after disapproval, agreements subject to filing are unlawful and may not be implemented.[3] Agreements that are "lawful under this section" are excepted from those provisions of the antitrust laws contained in - and 5 of Title 5 of the United States Code. Violations of the section are punishable by civil fines of not more than $,000 per day. The issue in this case is whether 5 of the Shipping Act requires the filing and the Commission's approval or disapproval of a collective-bargaining agreement between respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit made up of various employers of Pacific coast dockworkers,[4] and respondent International Longshoremen's and Warehousemen's Union (Union). I This case arose when eight municipal corporations, owners and operators of Pacific coast port facilities and not members of the PMA,[5] filed a petition with the Commission asserting that a 972 agreement between PMA and the Union was subject to filing and approval under 5 and was violative of 5, 6, and 7 of the Shipping Act[6] because it was unjust, *46 discriminatory, and contrary to the public interest. Prior to this time, the nonmember ports had negotiated separate agreements with the Union which contained terms and conditions that in some respects differed from those contained in the collective-bargaining contracts between PMA and the Union. Fringe-benefit provisions varied, depending on the result of individual negotiations.[7] In some respects the ports enjoyed more flexible work rules than did PMA; the ports, for example, were often permitted to use "steady crews," whereas, under the PMA contract, rotation of workers among employers was the general rule.[8] The existence of separate agreements between the Union and the public ports also enabled the Union to exert negotiating pressure on PMA by striking PMA while continuing to work for the individual ports. The ports, nevertheless, were permitted by virtue of separate agreements with PMA to secure their work force through the PMA-Union hiring halls[9] and to make the particular fringe-benefit payments *47 called for by their individual contracts by contributing to the fringe-benefit funds maintained by PMA.[0] During contract negotiations between PMA and the Union beginning in November 970, one of the issues raised was whether nonmembers should continue to be allowed to participate in PMA hiring-hall and fringe-benefit plans. These privileges PMA desired to eliminate.[] Ultimately, the parties arrived at a Supplemental Memorandum of Understanding described as follows by the court below: "In the Supplemental Memorandum the parties agreed that PMA would accept contributions from all nonmembers who executed a uniform participation agreement. This standard agreement, included in the Supplemental Memorandum, would require nonmembers, as a condition of using the joint dispatching halls for jointly registered employees, to participate in all fringe benefit programs, pay the same dues and assessments as PMA members, use steady men `in the same way a member may do so,' and be treated as a member during work stoppages." 77 U. S. App. D. C. 248, 250-25,[2] *48 It was this agreement that the public ports asserted was subject to filing and Commission action under 5. In October 972, the Commission severed for initial determination *49 the issues of its jurisdiction over the challenged agreement, and, if the Supplemental Memorandum of Understanding was otherwise covered by 5, whether there were considerations rooted in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of the section. Thereafter, on June 24, 973, PMA and the Union arrived at a new collective-bargaining agreement, which included a revised nonmember participation agreement replacing the Supplemental Memorandum of Understanding. By additional order, the Commission extended its jurisdictional inquiry to include the new contract with its nonmember participation provisions, which, although revised, were deemed by the Commission to have essentially the same impact for present purposes as the Supplemental Memorandum of Understanding. In its subsequent report and order, Pacific Maritime Assn.— Cooperative Working Arrangements, 8 F. M. C. 96 (975), the Commission first rejected the suggestion that because the case called for accommodating the Shipping Act and the labor statutes, as well as determining whether the parties had exceeded the scope of legitimate bargaining, the Commission should not itself decide the issue but should defer to the courts or to the National Labor Relations Board.[3] The Commission *50 also rejected the argument, as it had rejected similar arguments in New York Shipping Assn.—NYSA-ILA Man-Hour/Tonnage Method of Assessment, 6 F. M. C. 38 aff'd, (CA2), cert. denied, that 5's filing requirement was not triggered because some members of PMA were neither carriers nor "other persons subject to the act" or because PMA's contract was with a labor union, which also was neither a carrier nor "other person."[4] The Commission went on to find that the purpose of the nonmember participation agreement was to place nonmembers on the same competitive basis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. The Commission concluded that the agreement was thus subject to filing and approval or disapproval under 5, unless, because it was part of a collective-bargaining contract, it fell within that category of contracts that the national labor policy placed beyond the reach of the Shipping Act. The Commission had recognized this so-called "labor exemption" in United Stevedoring Corp. v. Boston Shipping Assn., 6 F. M. C. 7 (972), and it proceeded *5 to adjudicate the status of the instant agreement under the criteria announced in that case.[5] The Commission's ultimate conclusion was that the nonmember participation agreement was not entitled to exemption from filing under 5, primarily because its thrust was to *52 bring nonmembers into parity with members by requiring employers outside the bargaining unit to submit to bargaining-unit terms. The result had "a potentially severe and adverse effect upon competition," 8 F. M. C., at 208, and only a superficial effect on the collective-bargaining process. The agreement was thus subject to filing and approval under 5. The Court of Appeals for the District of Columbia Circuit set aside the Commission's order, holding that the disputed agreement was wholly beyond the Commission's jurisdiction under 5. 77 U. S. App. D. C. 248, The Commission's approach, which extends to labor agreements an exemption from Shipping Act requirements roughly equivalent to the exemption from the antitrust laws that the courts hold the labor statutes require for collective-bargaining contracts, was deemed an inadequate response to the demands of the national labor policy. Without disturbing the Commission's conclusion that the purpose and effect of the nonmember participation agreement at issue here were "to control or affect competition between members and nonmembers," 8 F. M. C., at 20, and hence that it was within the literal terms of 5, and without holding that the agreement would qualify for an antitrust exemption under the relevant cases, the Court of Appeals ruled that any collective-bargaining contract, whatever its impact on competition, was exempt from filing with the Commission. Alternatively, the Court of Appeals held that, even if its per se rule excluding collective-bargaining agreements from the reach of 5 was infirm, the Commission had erred in refusing to exempt from filing the particular nonmember participation agreement in question here. We granted the petition for certiorari filed by the United States and the Commission, which raises two issues: whether the national labor policy requires exempting collective-bargaining contracts as a class from the filing *53 requirements of 5 and, if not, whether the agreement at issue here is nevertheless exempt from those requirements. II We cannot agree with the holding below that, whatever their effect on competition might be, collective-bargaining contracts are categorically exempt from the filing requirements of 5 of the Shipping Act. Section 5 on its face reaches any contract between carriers "controlling, regulating, preventing, or destroying competition." If a contract is of that nature, it is within the reach of 5 and subject to the Commission's jurisdiction, and it is quite untenable to suggest that collective-bargaining contracts never control, regulate, prevent, or destroy competition. See Mine ; Allen Bradley If subject to 5, a filed agreement must be approved by the Commission unless it is discriminatory or unfair, operates to the detriment of the commerce of the United States, or is contrary to the public interest. Because 5 provides that an approved agreement will not be subject to the antitrust laws, it is apparent that Congress assigned to the Commission, not to the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines. It is equally apparent that as a substantive matter, Congress anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry. That the Commission is the public arbiter of competition in the shipping industry is reflected in prior holdings that in reaching its decision under 5 the Commission must "consider the antitrust implications of an agreement before approving it," and should approve an anticompetitive agreement only if it is "`required by a serious transportation need, necessary *54 to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.'" The Commission, nevertheless, may approve agreements "even though they are violative of the antitrust laws" The removal of the task of initially overseeing private restraints on competition from the regime of the antitrust laws and the courts is not a historical anachronism that we are entitled to ignore. Congress responded to Federal Maritime which held that a particular system of dual rates adopted by a shipping conference violated 4 of the Shipping Act, by suspending the effect of that decision pending full study and permanent legislation. After extensive investigation, important amendments were forthcoming in 96, Stat. 763; but the Act's basic approach—that the regulation of competition in the shipping industry is to be an administrative function, subject to judicial review—was reaffirmed. Indeed, 5 was amended "by enlarging and clarifying the [Commission's] powers over agreements filed thereunder" by, among other things, the addition of the public interest standard to 5. H. R. Rep. No. 498, 87th Cong., st Sess., 7-8 (96). Section 5 was declared by the Antitrust Subcommittee of the House Judiciary Committee, which undertook a three-year study of "the entire gamut of antitrust problems in the ocean freight industry" to be "the heart of the Shipping Act." H. R. Rep. No. 49, 87th Cong., 2d Sess., 2, 5 (962). It is appropriate, therefore, that the Court has recognized the broad reach of 5 and resisted improvident attempts to narrow it. In a collective-bargaining agreement between PMA and the Union included a provision requiring PMA to create a sizable fund to be used to mitigate the impact of technological unemployment upon employees. PMA reserved the right to *55 determine how the fund was to be raised, and thereafter it settled upon a particular method by which its members would contribute to the fund. The issue then arose whether this latter agreement was within the Commission's jurisdiction under 5. The Commission held that, although the assessment formula arrived at was within the literal language of the section, it was exempt from filing since 5 should be applied only to those agreements that affect competition among the carriers in their dealings with the shipping and traveling public.[6] The Court of Appeals affirmed; but we reversed, rejecting the Commission's "extremely narrow view of a statute that uses expansive language." In response to the Commission's expressed desire to read 5 narrowly in order to minimize the antitrust exemption, we noted that "antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved" and that "in deciding whether to approve an agreement, the Commission is required under 5 to consider antitrust implications." Hence, "[t]o limit 5 agreements that `affect competition,' as the Commission used that phrase simply [did] not square with the structure of the statute," and "would [render] virtually meaningless" major parts of 5's filing 390 U.S., n. 23. Because Volkswagenwerk dealt only with the agreed-upon assessment formula, the Court noted that no question had been raised about the validity of the underlying collective-bargaining contract. The opinion does not, therefore, determine one way or the other whether collective-bargaining contracts are ever within the reach of 5; but the Court did *56 emphasize the breadth of the statutory language and the determination of Congress, reflected in 5, to "subject to the scrutiny of a specialized governmental agency the myriad of restrictive agreements in the maritime industry." At the very least, the opinion counsels against implying broad exemptions for agreements, collective-bargaining contracts or otherwise, whose impact on competition is "neither de minimis nor routine." In the present case, the Court of Appeals' removal from the Commission's jurisdiction of all collective-bargaining contracts, regardless of how anticompetitive they might be, and whether or not exempt under the antitrust laws, would appear to be contrary to the plain terms of 5. The Court of Appeals was not unaware that it was depriving the Commission of the power to approve or disapprove anticompetitive contracts that 5 on its face clearly confers, but it thought its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labor-management relations, including those in the shipping industry. While there is no doubt that the courts must give all due effect to each of two seemingly overlapping statutes, we think the Court of Appeals misconceived its task here. The principal objection to Commission jurisdiction over any bargaining agreement was that under 5 agreements subject to filing cannot be implemented prior to approval or after disapproval. This alone was enough to exempt collective-bargaining contracts from filing under 5, for, as the Court of Appeals understood the collective-bargaining system mandated by the National Labor Relations Act, one of its essential elements is for the parties to be legally free "to implement promptly the compromise agreements worked out in eleventh-hour bargaining sessions" 77 U. S. App. D. C., at 259, Subjecting negotiated labor agreements to filing and approval "would make nearly impossible the maintenance or prompt restoration of industrial peace." *57 Prompt implementation of lawful collective-bargaining agreements is indeed an important consideration, but the fears of the Court of Appeals as to the possible impact of the Commission's decision on the collective-bargaining process are exaggerated and do not justify the major surgery performed on 5 by the decision below. In the first place, the Commission's decision would not require the filing of all or even most of the collective-bargaining contracts entered into in the shipping industry. Because 5 applies only to agreements between at least two parties subject to the Act, see n. collective-bargaining contracts between the Union and a single employer would not have to be filed. Moreover, not all collective-bargaining agreements between the Union and PMA would be subject to the requirements of 5. Under 5, filed agreements must be approved unless they operate to the detriment of commerce, are contrary to the public interest, or otherwise fail to satisfy the specified standards. Under these standards, it would be difficult to conclude that ordinary collective-bargaining agreements establishing wages, hours, and working conditions in a bargaining unit could or would be disapproved as contrary to the public interest or detrimental to commerce. Such contracts are the product of bargaining compelled by the labor laws, which themselves were enacted pursuant to the power of Congress to regulate commerce in the public interest. They are also the kind of contracts that the courts, because of the collective-bargaining regime established by the labor laws, in the main have declared to be beyond the reach of the antitrust laws, the statutes specifically designed to protect the commerce of the United States from anticompetitive restraints. The Commission has recognized that the vast majority of collective-bargaining arrangements cannot be deemed candidates for disapproval under 5 and that they would be routinely approved even if filed. Consistent with its power under 35 of the Shipping Act, as added, 80 Stat. *58 358, 46 U.S. C. 833a, in appropriate circumstances to exempt from 5 filing requirements "any class of agreements between persons subject to this chapter or any specified activity of such persons"[7] the Commission, by adjudication, has determined that it will recognize a "labor exemption" from the filing requirements of 5 for collective-bargaining contracts falling within the boundaries of the exemption defined by its announced criteria.[8] In doing so, the Commission has been guided by its understanding of our cases, and those of other courts, that recognize and define an exemption from the antitrust laws for certain contracts between management and labor. It appears to be the intention of the Commission to exercise jurisdiction over only those collective-bargaining contracts that in its view would not be exempt from examination under antitrust laws and that should be reviewed under Shipping Act standards. We therefore doubt that the Commission's decision will have a broad impact on labor-management relations. At least, it has not been demonstrated at this juncture that the collective-bargaining concerns cited by the Court of Appeals are sufficient to require complete exemption for labor agreements and the consequent partial emasculation of the statutory scheme for administrative review of anticompetitive agreements. *59 Second, the Commission, in any event, claims the authority, which it has exercised, see New York Shipping Assn.—NYSA-ILA Man-Hour/Tonnage Method of Assessment, 6 F. M. C. 38 aff'd, (CA2), cert. denied, to issue conditional approval of filed agreements pending final decision as to their legality; and it is not clear why this mechanism is not amply responsive to the fears of undue delay or why its adequacy should now be debated since the parties could have, but did not, request early, conditional approval. The Court of Appeals did not deny that the Commission could permit implementation of filed agreements prior to a final decision, but it thought the mechanism only a partial alleviation of the problem since the parties still would face the "specter" of a later administrative invalidation of perhaps a crucial part of a collective-bargaining contract. But it is not immediately obvious why provisions of a collective-bargaining contract that appear obviously illegal to the Commission should be immediately implemented pending final decision. Furthermore, if a collective-bargaining contract having serious anticompetitive aspects is not subject to filing under 5, as the Court of Appeals would have it, the parties would in any event face the uncertainty of possible invalidation and of treble damages after long and difficult litigation in an antitrust court. At least under 5, it would be possible that an anticompetitive collective-bargaining contract that would not survive scrutiny under the antitrust laws could be approved by the Commission, if it served important regulatory goals, and hence would be insulated from antitrust attack. Indeed, a critical aspect of the regulatory plan devised by Congress is the requirement of administrative judgment with respect to all of the specified contracts required to be filed. It was therefore error for the Court of Appeals to hold that the legality of collective-bargaining contracts, challenged as anti-competitive and nonexempt, must be judicially determined under the antitrust laws without interposition of the administrative *60 judgment and without regard for Shipping Act considerations. III The Court of Appeals also ruled that even absent a blanket exemption from 5 for collective-bargaining agreements, the Commission should not have exercised 5 jurisdiction in this case but should have exempted the nonmember participation agreement from filing. In doing so, the court appeared to disagree with the Commission's weighing of the impact on shipping interests of holding the agreement exempt against the impact on collective-bargaining interests of requiring filing and approval under 5. Perhaps because under the Act this kind of comparison must be the business of the Commission if all collective agreements are not exempt, the Court of Appeals offered little to support this alternative judgment. It suggested that the Commission had failed to realize that the nonmember participation agreement in the last analysis was merely an effort to force the public ports into a multiemployer bargaining unit against their will, an issue clearly within the National Labor Relations Board's authority and one in which the Commission should not intermeddle. The argument is wide of the mark. The Commission has not challenged the power of the Board to determine bargaining units; neither the Commission nor the parties have authority to change a unit certified by the Board. Rather than relying on the Board to resolve any bargaining-unit problem, if there was one, PMA and the Union agreed to impose bargaining-unit terms on employers outside the unit. Furthermore, the Court of Appeals recognized that the "Supreme Court has ruled against primary jurisdiction in the NLRB for anticompetitive agreements," 77 U. S. App. D. C., at 543 F.2d, at 40, but went on to conclude that we had removed from all primary administrative cognizance the entire question of accommodating collective-bargaining considerations and the public interest in competition. We doubt that our *6 opinions should be so broadly read. Congress has not authorized the NLRB to police, modify, or invalidate collective-bargaining contracts aimed at regulating competition or to insulate bargaining agreements from antitrust attack. But here, as we have said, Congress took the different course of committing to the Commission the initial task of approving or disapproving all agreements that control, regulate, prevent, or destroy competition. However much the courts might consider this to be a judicial function, particularly when it is necessary to accommodate the possibly conflicting policies of the labor and shipping laws, we have no warrant to ignore congressional preferences written into 5 of the Shipping Act. IV Although the Court of Appeals did not otherwise challenge the content or application of the Commission's guidelines for resolving issues as to its jurisdiction over collective-bargaining agreements, the respondents urge that the Commission has misread the relevant cases. In particular, they fault the Commission's findings with respect to the competitive impact of the nonmember participation agreement and the failure to find that the terms under challenge constituted serious antitrust violations. These submissions are unsound. It is plain from our cases that an antitrust case need not be tried and a violation found before a determination can be made that a collective-bargaining agreement is not within the labor exemption, just as it is clear that denying the exemption does not mean that there is an antitrust violation.[9] Insofar as the asserted exemption for collective-bargaining contracts is concerned, *62 the Commission found all it needed to find to assume jurisdiction and proceed with the case under 5 when it concluded that PMA and the Union had undertaken to impose employment terms and conditions on employers outside the bargaining unit. As we have previously observed: "[T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry." "[A] union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units." Mine 38 U. S., at 665-666. Here, both the Commission and the Court of Appeals understood the nonmember participation agreement to require nonmembers to participate in all fringe-benefit plans agreed upon between the PMA and the Union, to observe PMA-determined labor policies in the event of a work stoppage, and to observe the same work rules with respect to the hiring-hall work force. The result, the Commission found, would be higher costs for nonmembers and the elimination of what the PMA considered to be "a competitive disadvantage" to its members.[20] Accordingly, the Commission was warranted in finding that "the purpose of the supplemental agreement *63 [was] to place nonmembers on the same `competitive' basis as members of the PMA." 8 F. M. C., at 20. We are thus unpersuaded that the Commission did not make the requisite findings to sustain its view. Nor are we impressed with other arguments that in one guise or another are contentions that the Commission, for lack of ability and experience, should not purport to deal with any collective-bargaining agreement but should leave the entire matter of anticompetitive labor-management contracts to the courts and the antitrust laws. As we have said, Congress has made the Commission the arbiter of competition in the shipping industry; and if there are labor agreements so anticompetitive that they are vulnerable under the antitrust laws, it is difficult to explain why the Commission should not deal with them in the first instance and either approve or disapprove them under the standards specified in 5. In summary, we think the Commission was true to 5 and that it has also demonstrated its sensitivity to the national labor policy by exempting from the filing requirements all collective-bargaining contracts that in its view would also be exempt from the antitrust laws. Because the Commission also has the power to approve filed agreements, even though anticompetitive, the Commission may also take into account any special needs of labor-management relationships in the shipping industry. We should add that since the Shipping Act contains its own standards for exempting and for approving and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collective-bargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts. *64 The judgment of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR.

Justice Rehnquist

dissenting

Gladstone, Realtors v. Village of Bellwood

https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/

https://www.courtlistener.com/api/rest/v3/clusters/110056/

1978-073

Title VIII of the Civil Rights Act of 1968, 82 Stat. 81, as amended, 42 U.S. C. § 3601 et seq., which outlaws discrimination in virtually all aspects of the sale or rental of housing, provides two distinct and widely different routes into federal court. Under § 810, 42 U.S. C. § 3610,[1] a "person aggrieved," *117 that is, "[a]ny person who claims to have been injured by a discriminatory housing practice," may seek administrative relief from the Secretary of the Department of Housing and *118 Urban Development and, if the Secretary cannot within 30 days resolve the dispute "by informal methods of conference, conciliation, and persuasion," may bring a civil action in federal district court. In Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972), we held that the broad definition given to the term "person aggrieved" in § 810 evinced "`a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.'" 409 U.S., at 209. The second route into federal court under Title VIII— § 812[2]—provides simply that "[t]he rights granted by sections *119 803, 804, 805, and 806 of this title may be enforced by civil actions in appropriate United States district courts . . . ." 42 U.S. C. § 3612. Despite the absence from § 812 of the "person aggrieved" language so crucial to our holding in Trafficante regarding standing under § 810, the Court today holds that "[s]tanding under § 812, like that under § 810, is `as broa[d] as is permitted by Article III of the Constitution.'" Ante, at 109, quoting Trafficante v. Metropolitan Life Ins. Co., supra, at 209. I think that the Court's decision ignores the plain language of § 812 and makes nonsense out of Title VIII's formerly sensible statutory enforcement scheme. I The doctrine of standing is comprised of both constitutional limitations on the jurisdiction of federal courts and prudential rules of self-restraint designed to bar from federal court those parties who are ill-suited to litigate the claims they assert. In its constitutional dimension, the standing inquiry asks whether the party before the court has "`such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify *120 exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499 (1975) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). The crucial elements of standing are injury in fact and causation. To demonstrate the "personal stake" in the litigation necessary to satisfy the Constitution, the party must suffer "a distinct and palpable injury." Warth v. Seldin, supra, at 501, that bears a "`fairly traceable' causal connection" to the challenged action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977). Accordingly, when an objection to a party's standing to litigate in federal court is constitutionally based, "the relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). A plaintiff who alleges sufficient injury to satisfy these minimum constitutional limitations on federal jurisdiction may nonetheless be barred from federal court under our prudential standing rules because he asserts a generalized grievance shared in substantially equal measure by all or a large class of citizens, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974), or because he seeks to "rest his claim to relief on the legal rights or interests of third parties" rather than his own. Warth v. Seldin, 422 U. S., at 499. These prudential rules, however, are subject to modification by Congress, which may grant to any person satisfying Art. III's minimum standing requirements a right "to seek relief on the basis of the legal rights and interests of others, and, indeed, [to] invoke the general public interest in support of [his] claim." Id., at 501. Congress did just that in enacting § 810 of Title VIII, which grants to "[a]ny person who claims to have been injured by a discriminatory housing practice" a right to seek federal administrative and judicial relief. In Trafficante, *121 supra, we held that the broad definition given "person aggrieved" in § 810 indicated a congressional intent to accord apartment dwellers, who had not themselves suffered discrimination, an actionable right to be free from the adverse consequences flowing to them from racially discriminatory rental practices directed at third parties.[3] Plaintiffs' alleged "loss of important benefits from interracial associations," 409 U.S., at 210, was sufficient to satisfy the injury-in-fact requirement of Art. III. In the case now before us, respondents—the village of Bellwood, five of its residents, and one resident of a neighboring community—brought suit against petitioner real estate firms, alleging that the firms had violated both 42 U.S. C. § 1982 and § 804 of Title VIII by "steering" prospective homebuyers to different areas in and around Bellwood according to their race. Like plaintiffs in Trafficante, the individual respondents allege that petitioners' practice of racial steering has deprived them of "the social and professional benefits of living in an integrated society."[4] App. 6, 99. Respondent village of Bellwood alleges that it has been injured "by having [its] housing market . . . wrongfully and illegally *122 manipulated to the economic and social detriment of [its] citizens." Ibid. Unlike plaintiffs in Trafficante, however, respondents have not proceeded under § 810 of Title VIII, choosing instead to travel the direct route into federal court provided by § 812. In pertinent part, § 812 provides: "The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction." 82 Stat. 88, 42 U.S. C. § 3612 (a). The language of § 812 contains no indication that Congress intended to authorize the commencement of suits under Title VIII by persons who would otherwise be barred from federal court by prudential standing rules. Indeed, were § 812 the only method for enforcing Title VIII, respondents—who were not themselves discriminated against by petitioners—could hardly argue that they were statutorily authorized to seek relief on the basis of legal rights and interests of third parties who had been racially "steered" into and away from certain areas in the community. The Court, however, in effect reads the broadly defined "person aggrieved" language of § 810 into § 812, holding that the alternative routes into federal court provided under the sections are available to precisely the same class of plaintiffs. The language and structure of Title VIII lead me to a contrary conclusion. II The term "person aggrieved" is used throughout § 810—no less than four times—to denominate the proper § 810 claimant;[5] by contrast, in § 812 Congress wholly avoided use of this broadly defined term, preferring instead the familiar "plaintiff." Noting that § 812 is phrased in the passive voice, *123 the Court concludes that the absence of the "person aggrieved" language from the provision "does not indicate that standing is more limited under that provision than under § 810." Ante, at 103 (emphasis added). The point of our decision in Trafficante, however, was that the presence of the "person aggrieved" language in § 810 demonstrated Congress' affirmative intent to abrogate prudential standing rules and to expand standing under the section to the full extent permitted by Art. III of the Constitution. It thus follows that the absence of "person aggrieved" from § 812 indicates that Congress did not intend to abrogate the normal prudential rules of standing with regard to § 812. Consistent with § 810's broad grant of standing is the language chosen by Congress to define the scope of the civil action that may be brought under the section: "[T]he person aggrieved may . . . commence a civil action in any appropriate United States district court . . . to enforce the rights granted or protected by this title . . . ." 82 Stat. 86, 42 U.S. C. § 3610 (d) (emphasis added). Section 812, in contrast, authorizes the commencement of a civil action to enforce only "[t]he rights granted by," as opposed to "rights granted or protected by," §§ 803, 804, 805, and 806. Clearly, Congress contemplated that § 812 suits could be instituted only by persons alleging injury to rights expressly secured under the enumerated sections. Section 804, the provision allegedly offended by petitioners, provides in pertinent part: "[I]t shall be unlawful— "(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. "(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or *124 in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin. ..... "(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available." 82 Stat. 83, as amended, 88 Stat. 729, 42 U.S. C. § 3604. In essence, § 804 grants to all persons[6] seeking housing the right not to be discriminated against on the basis of race, color, religion, sex, or national origin. Nowhere in the section are the individual respondents granted a right to reap the "social and professional benefits of living in an integrated society." Nor does § 804 grant the village of Bellwood an actionable right not to have its housing market "wrongfully and illegally manipulated." Accordingly, respondents have suffered no injury to "rights granted by [§ 804]." The structure of both § 810 and § 812 and the significant differences between the two enforcement provisions further support the conclusion that Congress intended to restrict access to federal courts under § 812 to a more limited class of plaintiffs than that contemplated under § 810. A "person aggrieved" proceeding under § 810 must first file a complaint with the Secretary of Housing and Urban Development, who is authorized "to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion." 42 U.S. C. § 3610 (a). The Secretary, however, must defer to the appropriate state *125 or local agency whenever state or local fair-housing laws provide rights and remedies substantially equivalent to those secured under Title VIII. The Secretary may recommence action on the complaint only upon certification that such action is necessary to protect the rights of the parties or the interest of justice. 42 U.S. C. § 3610 (c). If the Secretary's informal efforts prove futile, the "person aggrieved" may commence a civil action under Title VIII in federal district court, but only if he has no comparable judicial remedy under "substantially equivalent" state or local fair-housing legislation. 42 U.S. C. § 3610 (d). The § 812 "plaintiff" is not similarly encumbered. He may proceed directly into federal court, deferring neither to the Secretary of Housing and Urban Development nor to state administrative and judicial processes. See 42 U.S. C. § 3612 (a). The District Court is authorized to appoint an attorney for the § 812 plaintiff and to waive payment of fees, costs, and security. 42 U.S. C. § 3612 (b). Additionally, broader relief is available under § 812. The "prevailing plaintiff" may be awarded a "permanent or temporary injunction, temporary restraining order, or other order, and . . . actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees . . . ." 42 U.S. C. § 3612 (c). Section 810, by contrast, makes no allowance for damages, costs, or counsel fees, limiting the victorious claimant to injunctive relief and such other affirmative action as may be appropriate. 42 U.S. C. § 3610 (d). Nor does § 812 contain a provision similar to § 810 (e), which provides that "[i]n any proceeding brought pursuant to [§ 810], the burden of proof shall be on the complainant." Given the advantages to the claimant of proceeding under § 812, it is hard to imagine why anyone would voluntarily proceed under § 810 if both routes were equally available. When the carefully chosen language and the widely variant provisions of § 810 and § 812 are thus compared, the logic of *126 Title VIII's private enforcement mechanism becomes clear. Immediate access to federal judicial power under § 812 was reserved to those directly victimized by a discriminatory housing practice; that is, those actually discriminated against on the basis of race, color, religion, sex, or national origin. Only direct victims of housing discrimination were deemed to suffer injuries of sufficient magnitude to authorize appointment of counsel and recovery of compensatory and punitive damages, costs, and attorney fees. But because discrimination in housing can injure persons other than the direct objects of the discrimination, Trafficante, 409 U. S., at 210, Congress believed that the statute's fair-housing goals would be served by extending standing under § 810 as broadly as constitutionally permissible. Anyone claiming to have been injured by a discriminatory housing practice, even if not himself directly discriminated against, is authorized to seek redress under § 810. By barring indirect victims of housing discrimination from immediate access to federal court under § 812, and thus requiring them to exhaust federal conciliation procedures as well as viable state and local remedies pursuant to § 810, Congress sought to facilitate informal resolution of Title VIII disputes, to avoid federal judicial intervention when possible, and to encourage state and local involvement in the effort to eliminate housing discrimination. The legislative history of Title VIII, while "not too helpful," Trafficante, supra, at 210, supports the view that standing to commence a civil action under § 812 is limited to direct victims of housing discrimination. Introduced on the Senate floor and approved unchanged by the House, Title VIII's legislative history must be culled primarily from the Congressional Record. The brief debate preceding adoption of Amendment No. 586, which amended § 810 to require exhaustion of "substantially equivalent" remedies under state or local fair-housing laws as a prerequisite to the filing of a Title *127 VIII action in federal court, is particularly enlightening. Senator Miller, who introduced the amendment, explained: "I provide in the second part of my amendment that no civil action may be brought in any U. S. district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides substantially equivalent rights and remedies to this act. "I believe it is a matter of letting the State and local courts have jurisdiction. We in the Senate know that our Federal district court calendars are crowded enough, without adding to that load if there is a good remedy under State law." 114 Cong. Rec. 4987 (1968). Senator Hart added that the amendment "recognizes the desire all of us share that the State remedies, where adequate, be availed of and that unnecessary burdening litigation not further clog the court calendars." Ibid. It seems unlikely that Congress would wholly frustrate the concerns moving it to adopt § 810's exhaustion requirement by opening § 812's direct route into federal court to all "persons aggrieved." The debate concerning the allowance of attorney's fees to prevailing plaintiffs under § 812 also indicates a congressional understanding that standing to proceed immediately into federal court under § 812 was limited to discriminatees. Senator Hart commented that §§ 812 (b) and (c)—which authorize the district court to waive payment of fees, costs, and security in appropriate cases and to award damages, court costs, and reasonable attorney fees to prevailing plaintiffs—"reveal a clear congressional intent to permit, and even encourage, litigation by those who cannot afford to redress specific wrongs aimed at them because of the color of their skin." 114 Cong. Rec. 5514-5515 (1968) (emphasis added). The meager legislative history marshaled by the Court provides at best thin support for its expansive interpretation of standing under § 812. References in the legislative history describing § 812 as an "addition[al]" and "alternative" remedial *128 provision to § 810, ante, at 106, and nn. 16, 17, and 18, are hardly dispositive: one need only read the two sections to conclude that they provide "alternative" enforcement mechanisms. That § 810 and § 812 are "alternative" remedial provisions does not, however, compel the conclusion that they are equally available to all potential Title VIII claimants. The only piece of legislative history arguably supporting the Court's interpretation of § 812 is the House Judiciary Committee staff's use of the term "aggrieved person" to refer to potential § 812 plaintiffs. Ante, at 107 n. 18. This single, fleeting reference in the legislative history hardly seems sufficient to overwhelm the contrary indications of congressional intent found elsewhere in Title VIII's legislative history and in the carefully worded and structured provisions of § 810 and § 812. I think that Trafficante pushed standing to the limit in construing the "person aggrieved" language of § 810. I cannot join the Court in pressing the more narrowly confined language of § 812 to the same limit. III Respondents also claim standing under 42 U.S. C. § 1982, which provides: "All citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property." Unlike Title VIII, "§ 1982 is not a comprehensive open housing law." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968). Enacted as part of the Civil Rights Act of 1866, the section bars all racial discrimination, both private and public, in the sale or rental of property. Ibid. It is clear that respondents have suffered no injury to the only right secured under § 1982—the right to be free from racially motivated interference with property rights. Their claim of standing under § 1982 is thus conceptually indistinguishable from a similar claim rejected by this Court in *129 Warth v. Seldin, 422 U.S. 490 (1975). Plaintiffs in Warth brought a § 1982 action against the town of Penfield, N. Y., and members of its Zoning, Planning, and Town Boards, claiming that the town's zoning ordinance effectively excluded persons of minority racial and ethnic groups. One of the plaintiffs, a nonprofit corporation organized to alleviate the housing shortage for low-and moderate-income persons in and around Penfield, based its standing to challenge the zoning ordinance on the loss to its members residing in Penfield of the "benefits of living in a racially and ethnically integrated community." 422 U.S., at 512. This Court rejected plaintiff's claim of standing, distinguishing Trafficante on the ground that § 1982, unlike § 810 of Title VIII, does not give residents of certain communities an actionable right to be free from the adverse consequences of racially discriminatory practices directed at and immediately harmful to others. Thus, we held plaintiff's "attempt to raise putative rights of third parties," 422 U.S., at 514, barred by the prudential rules of standing. Like plaintiffs in Warth, respondents claim that they have been injured by racially discriminatory acts practiced on others. Thus, their claim of standing under § 1982 must also fail. Because I think that respondents have no standing to litigate claims under 42 U.S. C. § 1982 and § 812 of the Civil Rights Act of 1968, I would reverse the judgment of the Court of Appeals.

Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S. C. 3601 et seq., which outlaws discrimination in virtually all aspects of the sale or rental of housing, provides two distinct and widely different routes into federal court. Under 810, 42 U.S. C. 3610,[1] a "person aggrieved," *117 that is, "[a]ny person who claims to have been injured by a discriminatory housing practice," may seek administrative relief from the Secretary of the Department of Housing and *118 Urban Development and, if the Secretary cannot within 30 days resolve the dispute "by informal methods of conference, conciliation, and persuasion," may bring a civil action in federal district court. In we held that the broad definition given to the term "person aggrieved" in 810 evinced "`a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.'" The second route into federal court under Title VIII— 812[2]—provides simply that "[t]he rights granted by sections *119 803, 804, 805, and 806 of this title may be enforced by civil actions in appropriate United States district courts" 42 U.S. C. 3612. Despite the absence from 812 of the "person aggrieved" language so crucial to our holding in regarding standing under 810, the Court today holds that "[s]tanding under 812, like that under 810, is `as broa[d] as is permitted by Article III of the Constitution.'" Ante, at 109, quoting I think that the Court's decision ignores the plain language of 812 and makes nonsense out of Title VIII's formerly sensible statutory enforcement scheme. I The doctrine of standing is comprised of both constitutional limitations on the jurisdiction of federal courts and prudential rules of self-restraint designed to bar from federal court those parties who are ill-suited to litigate the claims they assert. In its constitutional dimension, the standing inquiry asks whether the party before the court has "`such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify *120 exercise of the court's remedial powers on his behalf." quoting The crucial elements of standing are injury in fact and causation. To demonstrate the "personal stake" in the litigation necessary to satisfy the Constitution, the party must suffer "a distinct and palpable injury." that bears a "`fairly traceable' causal connection" to the challenged action. Duke Power v. Carolina Environmental Study Group, Inc., quoting Arlington Accordingly, when an objection to a party's standing to litigate in federal court is constitutionally based, "the relevant inquiry is whether the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." A plaintiff who alleges sufficient injury to satisfy these minimum constitutional limitations on federal jurisdiction may nonetheless be barred from federal court under our prudential standing rules because he asserts a generalized grievance shared in substantially equal measure by all or a large class of citizens, or because he seeks to "rest his claim to relief on the legal rights or interests of third parties" rather than his own. These prudential rules, however, are subject to modification by Congress, which may grant to any person satisfying Art. III's minimum standing requirements a right "to seek relief on the basis of the legal rights and interests of others, and, indeed, [to] invoke the general public interest in support of [his] claim." Congress did just that in enacting 810 of Title VIII, which grants to "[a]ny person who claims to have been injured by a discriminatory housing practice" a right to seek federal administrative and judicial relief. In *121 we held that the broad definition given "person aggrieved" in 810 indicated a congressional intent to accord apartment dwellers, who had not themselves suffered discrimination, an actionable right to be free from the adverse consequences flowing to them from racially discriminatory rental practices directed at third parties.[3] Plaintiffs' alleged "loss of important benefits from interracial associations," was sufficient to satisfy the injury-in-fact requirement of Art. III. In the case now before us, respondents—the village of Bellwood, five of its residents, and one resident of a neighboring community—brought suit against petitioner real estate firms, alleging that the firms had violated both 42 U.S. C. 1982 and 804 of Title VIII by "steering" prospective homebuyers to different areas in and around Bellwood according to their race. Like plaintiffs in the individual respondents allege that petitioners' practice of racial steering has deprived them of "the social and professional benefits of living in an integrated society."[4] App. 6, 99. Respondent village of Bellwood alleges that it has been injured "by having [its] housing market wrongfully and illegally *122 manipulated to the economic and social detriment of [its] citizens." Unlike plaintiffs in however, respondents have not proceeded under 810 of Title VIII, choosing instead to travel the direct route into federal court provided by 812. In pertinent part, 812 provides: "The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction." 42 U.S. C. 3612 (a). The language of 812 contains no indication that Congress intended to authorize the commencement of suits under Title VIII by persons who would otherwise be barred from federal court by prudential standing rules. Indeed, were 812 the only method for enforcing Title VIII, respondents—who were not themselves discriminated against by petitioners—could hardly argue that they were statutorily authorized to seek relief on the basis of legal rights and interests of third parties who had been racially "steered" into and away from certain areas in the community. The Court, however, in effect reads the broadly defined "person aggrieved" language of 810 into 812, holding that the alternative routes into federal court provided under the sections are available to precisely the same class of plaintiffs. The language and structure of Title VIII lead me to a contrary conclusion. II The term "person aggrieved" is used throughout 810—no less than four times—to denominate the proper 810 claimant;[5] by contrast, in 812 Congress wholly avoided use of this broadly defined term, preferring instead the familiar "plaintiff." Noting that 812 is phrased in the passive voice, *123 the Court concludes that the absence of the "person aggrieved" language from the provision "does not indicate that standing is more limited under that provision than under 810." Ante, at 103 (emphasis added). The point of our decision in however, was that the presence of the "person aggrieved" language in 810 demonstrated Congress' affirmative intent to abrogate prudential standing rules and to expand standing under the section to the full extent permitted by Art. III of the Constitution. It thus follows that the absence of "person aggrieved" from 812 indicates that Congress did not intend to abrogate the normal prudential rules of standing with regard to 812. Consistent with 810's broad grant of standing is the language chosen by Congress to define the scope of the civil action that may be brought under the section: "[T]he person aggrieved may commence a civil action in any appropriate United States district court to enforce the rights granted or protected by this title" 42 U.S. C. 3610 (d) (emphasis added). Section 812, in contrast, authorizes the commencement of a civil action to enforce only "[t]he rights granted by," as opposed to "rights granted or protected by," 803, 804, 805, and 806. Clearly, Congress contemplated that 812 suits could be instituted only by persons alleging injury to rights expressly secured under the enumerated sections. Section 804, the provision allegedly offended by petitioners, provides in pertinent part: "[I]t shall be unlawful— "(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. "(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or *124 in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin. "(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available." as amended, 88 Stat. 9, 42 U.S. C. 3604. In essence, 804 grants to all persons[6] seeking housing the right not to be discriminated against on the basis of race, color, religion, sex, or national origin. Nowhere in the section are the individual respondents granted a right to reap the "social and professional benefits of living in an integrated society." Nor does 804 grant the village of Bellwood an actionable right not to have its housing market "wrongfully and illegally manipulated." Accordingly, respondents have suffered no injury to "rights granted by [ 804]." The structure of both 810 and 812 and the significant differences between the two enforcement provisions further support the conclusion that Congress intended to restrict access to federal courts under 812 to a more limited class of plaintiffs than that contemplated under 810. A "person aggrieved" proceeding under 810 must first file a complaint with the Secretary of Housing and Urban Development, who is authorized "to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion." 42 U.S. C. 3610 (a). The Secretary, however, must defer to the appropriate state *125 or local agency whenever state or local fair-housing laws provide rights and remedies substantially equivalent to those secured under Title VIII. The Secretary may recommence action on the complaint only upon certification that such action is necessary to protect the rights of the parties or the interest of justice. 42 U.S. C. 3610 (c). If the Secretary's informal efforts prove futile, the "person aggrieved" may commence a civil action under Title VIII in federal district court, but only if he has no comparable judicial remedy under "substantially equivalent" state or local fair-housing legislation. 42 U.S. C. 3610 (d). The 812 "plaintiff" is not similarly encumbered. He may proceed directly into federal court, deferring neither to the Secretary of Housing and Urban Development nor to state administrative and judicial processes. See 42 U.S. C. 3612 (a). The District Court is authorized to appoint an attorney for the 812 plaintiff and to waive payment of fees, costs, and security. 42 U.S. C. 3612 (b). Additionally, broader relief is available under 812. The "prevailing plaintiff" may be awarded a "permanent or temporary injunction, temporary restraining order, or other order, and actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees" 42 U.S. C. 3612 (c). Section 810, by contrast, makes no allowance for damages, costs, or counsel fees, limiting the victorious claimant to injunctive relief and such other affirmative action as may be appropriate. 42 U.S. C. 3610 (d). Nor does 812 contain a provision similar to 810 (e), which provides that "[i]n any proceeding brought pursuant to [ 810], the burden of proof shall be on the complainant." Given the advantages to the claimant of proceeding under 812, it is hard to imagine why anyone would voluntarily proceed under 810 if both routes were equally available. When the carefully chosen language and the widely variant provisions of 810 and 812 are thus compared, the logic of *126 Title VIII's private enforcement mechanism becomes clear. Immediate access to federal judicial power under 812 was reserved to those directly victimized by a discriminatory housing practice; that is, those actually discriminated against on the basis of race, color, religion, sex, or national origin. Only direct victims of housing discrimination were deemed to suffer injuries of sufficient magnitude to authorize appointment of counsel and recovery of compensatory and punitive damages, costs, and attorney fees. But because discrimination in housing can injure persons other than the direct objects of the discrimination, Congress believed that the statute's fair-housing goals would be served by extending standing under 810 as broadly as constitutionally permissible. Anyone claiming to have been injured by a discriminatory housing practice, even if not himself directly discriminated against, is authorized to seek redress under 810. By barring indirect victims of housing discrimination from immediate access to federal court under 812, and thus requiring them to exhaust federal conciliation procedures as well as viable state and local remedies pursuant to 810, Congress sought to facilitate informal resolution of Title VIII disputes, to avoid federal judicial intervention when possible, and to encourage state and local involvement in the effort to eliminate housing discrimination. The legislative history of Title VIII, while "not too helpful," supports the view that standing to commence a civil action under 812 is limited to direct victims of housing discrimination. Introduced on the Senate floor and approved unchanged by the House, Title VIII's legislative history must be culled primarily from the Congressional Record. The brief debate preceding adoption of Amendment No. 586, which amended 810 to require exhaustion of "substantially equivalent" remedies under state or local fair-housing laws as a prerequisite to the filing of a Title *127 VIII action in federal court, is particularly enlightening. Senator Miller, who introduced the amendment, explained: "I provide in the second part of my amendment that no civil action may be brought in any U. S. district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides substantially equivalent rights and remedies to this act. "I believe it is a matter of letting the State and local courts have jurisdiction. We in the Senate know that our Federal district court calendars are crowded enough, without adding to that load if there is a good remedy under State law." 114 Cong. Rec. 4987 Senator Hart added that the amendment "recognizes the desire all of us share that the State remedies, where adequate, be availed of and that unnecessary burdening litigation not further clog the court calendars." It seems unlikely that Congress would wholly frustrate the concerns moving it to adopt 810's exhaustion requirement by opening 812's direct route into federal court to all "persons aggrieved." The debate concerning the allowance of attorney's fees to prevailing plaintiffs under 812 also indicates a congressional understanding that standing to proceed immediately into federal court under 812 was limited to discriminatees. Senator Hart commented that 812 (b) and (c)—which authorize the district court to waive payment of fees, costs, and security in appropriate cases and to award damages, court costs, and reasonable attorney fees to prevailing plaintiffs—"reveal a clear congressional intent to permit, and even encourage, litigation by those who cannot afford to redress specific wrongs aimed at them because of the color of their skin." 114 Cong. Rec. 5514-5515 (emphasis added). The meager legislative history marshaled by the Court provides at best thin support for its expansive interpretation of standing under 812. References in the legislative history describing 812 as an "addition[al]" and "alternative" remedial *128 provision to 810, ante, at 106, and nn. 16, 17, and 18, are hardly dispositive: one need only read the two sections to conclude that they provide "alternative" enforcement mechanisms. That 810 and 812 are "alternative" remedial provisions does not, however, compel the conclusion that they are equally available to all potential Title VIII claimants. The only piece of legislative history arguably supporting the Court's interpretation of 812 is the House Judiciary Committee staff's use of the term "aggrieved person" to refer to potential 812 plaintiffs. Ante, at 107 n. 18. This single, fleeting reference in the legislative history hardly seems sufficient to overwhelm the contrary indications of congressional intent found elsewhere in Title VIII's legislative history and in the carefully worded and structured provisions of 810 and 812. I think that pushed standing to the limit in construing the "person aggrieved" language of 810. I cannot join the Court in pressing the more narrowly confined language of 812 to the same limit. III Respondents also claim standing under 42 U.S. C. 1982, which provides: "All citizens of the United States shall have the same right as is enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property." Unlike Title VIII, " 1982 is not a comprehensive open housing law." Jones v. Alfred H. Mayer Enacted as part of the Civil Rights Act of 1866, the section bars all racial discrimination, both private and public, in the sale or rental of property. It is clear that respondents have suffered no injury to the only right secured under 1982—the right to be free from racially motivated interference with property rights. Their claim of standing under 1982 is thus conceptually indistinguishable from a similar claim rejected by this Court in *129 Plaintiffs in Warth brought a 1982 action against the town of Penfield, N. Y., and members of its Zoning, Planning, and Town Boards, claiming that the town's zoning ordinance effectively excluded persons of minority racial and ethnic groups. One of the plaintiffs, a nonprofit corporation organized to alleviate the housing shortage for low-and moderate-income persons in and around Penfield, based its standing to challenge the zoning ordinance on the loss to its members residing in Penfield of the "benefits of living in a racially and ethnically integrated community." This Court rejected plaintiff's claim of standing, distinguishing on the ground that 1982, unlike 810 of Title VIII, does not give residents of certain communities an actionable right to be free from the adverse consequences of racially discriminatory practices directed at and immediately harmful to others. Thus, we held plaintiff's "attempt to raise putative rights of third parties," barred by the prudential rules of standing. Like plaintiffs in Warth, respondents claim that they have been injured by racially discriminatory acts practiced on others. Thus, their claim of standing under 1982 must also fail. Because I think that respondents have no standing to litigate claims under 42 U.S. C. 1982 and 812 of the Civil Rights Act of 1968, I would reverse the judgment of the Court of Appeals.

Justice Burger

majority

Hudson v. Palmer

https://www.courtlistener.com/opinion/111252/hudson-v-palmer/

https://www.courtlistener.com/api/rest/v3/clusters/111252/

1983-159

We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in Parratt v. Taylor, 451 U.S. 527 (1981), which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists, should extend to intentional deprivations of property. I The facts underlying this dispute are relatively simple. Respondent Palmer is an inmate at the Bland Correctional Center in Bland, Va., serving sentences for forgery, uttering, grand larceny, and bank robbery convictions. On September 16, 1981, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a "shakedown" search of respondent's prison locker and cell for contraband. During the "shakedown," the officers discovered a ripped pillowcase in a trash can near respondent's cell bunk. Charges *520 against Palmer were instituted under the prison disciplinary procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record. Palmer subsequently brought this pro se action in United States District Court under 42 U.S. C. § 1983. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search. Hudson denied each allegation; he moved for and was granted summary judgment. The District Court accepted respondent's allegations as true but held nonetheless, relying on Parratt v. Taylor, supra, that the alleged destruction of respondent's property, even if intentional, did not violate the Fourteenth Amendment because there were state tort remedies available to redress the deprivation, App. 31[1] and that the alleged harassment did not "rise to the level of a constitutional deprivation," id., at 32. The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. 697 F.2d 1220 (CA4 1983). The court affirmed the District Court's holding that respondent was not deprived of his property without due process. The court acknowledged that we considered only a claim of negligent property deprivation in Parratt v. Taylor, supra. It agreed with the District Court, however, that the logic of Parratt applies equally to unauthorized intentional deprivations of property by state officials: "[O]nce it is assumed *521 that a postdeprivation remedy can cure an unintentional but negligent act causing injury, inflicted by a state agent which is unamenable to prior review, then that principle applies as well to random and unauthorized intentional acts." 697 F.2d, at 1223.[2] The Court of Appeals did not discuss the availability and adequacy of existing state-law remedies; it presumably accepted as correct the District Court's statement of the remedies available under Virginia law.[3] The Court of Appeals reversed the summary judgment on respondent's claim that the shakedown search was unreasonable. The court recognized that Bell v. Wolfish, 441 U.S. 520, 555-557 (1979), authorized irregular unannounced shake-down searches of prison cells. But the court held that an individual prisoner has a "limited privacy right" in his cell entitling him to protection against searches conducted solely to harass or to humiliate. 697 F.2d, at 1225.[4] The shakedown of a single prisoner's property, said the court, is permissible *522 only if "done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the particular prisoner possessed contraband. Id., at 1224. Because the Court of Appeals concluded that the record reflected a factual dispute over whether the search of respondent's cell was routine or conducted to harass respondent, it held that summary judgment was inappropriate, and that a remand was necessary to determine the purpose of the cell search. We granted certiorari. 463 U.S. 1206 (1983). We affirm in part and reverse in part. II A The first question we address is whether respondent has a right of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches.[5] As we have noted, the Court of Appeals held that the District Court's summary judgment in petitioner's favor was premature because respondent had a "limited privacy right" in his cell that might have been breached. The court concluded that, to protect this privacy right, shakedown searches of an individual's cell should be performed only "pursuant to an established program of conducting random *523 searches . . . reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the prisoner possesses contraband. Petitioner contends that the Court of Appeals erred in holding that respondent had even a limited privacy right in his cell, and urges that we adopt the "bright line" rule that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection. We have repeatedly held that prisons are not beyond the reach of the Constitution. No "iron curtain" separates one from the other. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. For example, we have held that invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to "prison security and discipline." Lee v. Washington, 390 U.S. 333 (1968) (per curiam). Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts. Johnson v. Avery, 393 U.S. 483 (1969). Prisoners must be provided "reasonable opportunities" to exercise their religious freedom guaranteed under the First Amendment. Cruz v. Beto, 405 U.S. 319 (1972) (per curiam). Similarly, they retain those First Amendment rights of speech "not inconsistent with [their] status as . . . prisoner[s] or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). They enjoy the protection of due process. Wolff v. McDonnell, supra; Haines v. Kerner, 404 U.S. 519 (1972). And the Eighth Amendment ensures that they will not be subject to "cruel and unusual punishments." Estelle v. Gamble, 429 U.S. 97 (1976). The continuing guarantee of these substantial rights to prison inmates is testimony to a belief that the way a society treats those who have transgressed *524 against it is evidence of the essential character of that society. However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. See Bell v. Wolfish, 441 U. S., at 545. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948); see also Bell v. Wolfish, supra, at 545-546 and cases cited; Wolff v. McDonnell, supra, at 555. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, Wolff v. McDonnell, supra, at 555, chief among which is internal security, see Pell v. Procunier, supra, at 823. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction. We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell,[6] but the nature of our inquiry is well defined. *525 We must determine here, as in other Fourth Amendment contexts, if a "justifiable" expectation of privacy is at stake. Katz v. United States, 389 U.S. 347 (1967). The applicability of the Fourth Amendment turns on whether "the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740 (1979), and cases cited. We must decide, in Justice Harlan's words, whether a prisoner's expectation of privacy in his prison cell is the kind of expectation that "society is prepared to recognize as `reasonable.' " Katz, supra, at 360, 361 (concurring opinion).[7] Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we *526 hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions. Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown as inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. Even a partial survey of the statistics on violent crime in our Nation's prisons illustrates the magnitude of the problem. During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same time frame. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium (Mar. 1983). Additionally, informal statistics from the United States Bureau of Prisons show that in the federal system during 1983, there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in 1981 and 1982 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel. Within this volatile "community," prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable *527 measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. In addition to these monumental tasks, it is incumbent upon these officials at the same time to maintain as sanitary an environment for the inmates as feasible, given the difficulties of the circumstances. The administration of a prison, we have said, is "at best an extraordinarily difficult undertaking." Wolff v. McDonnell, 418 U. S., at 566; Hewitt v. Helms, 459 U.S. 460, 467 (1983). But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained. Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." Lanza v. New York, 370 U.S. 139, 143-144 (1962). We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals," Pell v. Procunier, 417 U. S., at 823. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells *528 required to ensure institutional security and internal order.[8] We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." Bell v. Wolfish, 441 U. S., at 537. The Court of Appeals was troubled by the possibility of searches conducted solely to harass inmates; it reasoned that a requirement that searches be conducted only pursuant to an established policy or upon reasonable suspicion would prevent such searches to the maximum extent possible. Of course, there is a risk of maliciously motivated searches, and of course, intentional harassment of even the most hardened criminals cannot be tolerated by a civilized society. However, we disagree with the court's proposed solution. The uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. The Court of Appeals candidly acknowledged that "the device [of random cell searches] is of . . . obvious utility in achieving the goal of prison security." 697 F.2d, at 1224. *529 A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for "planned random searches," and thus be able routinely to anticipate searches. The Supreme Court of Virginia identified the shortcomings of an approach such as that adopted by the Court of Appeals and the necessity of allowing prison administrators flexibility: "For one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or collectively, and their cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband." Marrero v. Commonwealth, 222 Va. 754, 757, 284 S.E.2d 809, 811 (1981). We share the concerns so well expressed by the Supreme Court and its view that wholly random searches are essential to the effective security of penal institutions. We, therefore, cannot accept even the concededly limited holding of the Court of Appeals. Respondent acknowledges that routine shakedowns of prison cells are essential to the effective administration of prisons. Brief for Respondent and Cross-Petitioner 7, n. 5. He contends, however, that he is constitutionally entitled not to be subjected to searches conducted only to harass. The crux of his claim is that "because searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose." Id., at 24. This argument, *530 which assumes the answer to the predicate question whether a prisoner has a legitimate expectation of privacy in his prison cell at all, is merely a challenge to the reasonableness of the particular search of respondent's cell. Because we conclude that prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells, we need not address this issue. Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments." By the same token, there are adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property. See discussion infra, at 534-536.[9] B In his complaint in the District Court, in addition to his claim that the shakedown search of his cell violated his Fourth and Fourteenth Amendment privacy rights, respondent alleged under 42 U.S. C. § 1983 that petitioner intentionally destroyed certain of his personal property during the search. This destruction, respondent contended, deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment. The District Court dismissed this portion of respondent's complaint for failure to state a claim. Reasoning under Parratt v. Taylor, *531 451 U.S. 527 (1981), it held that even an intentional destruction of property by a state employee does not violate due process if the state provides a meaningful postdeprivation remedy. The Court of Appeals affirmed. The question presented for our review in Palmer's cross-petition is whether our decision in Parratt v. Taylor should extend, as the Court of Appeals held, to intentional deprivations of property by state employees acting under color of state law.[10] In Parratt v. Taylor, a state prisoner sued prison officials under 42 U.S. C. § 1983, alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog deprived him of property without due process of law, in violation of the Fourteenth Amendment. The Court of Appeals for the Eighth Circuit had affirmed the District Court's summary judgment in the prisoner's favor. We reversed, holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy.[11] We viewed our decision in Parratt as consistent with prior cases recognizing that "either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some *532 meaningful means by which to assess the propriety of the State's action at some time after the initial taking. . . satisf[ies] the requirements of procedural due process." 451 U.S., at 539 (footnote omitted). We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Id., at 541. Under these circumstances, we observed: "It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under `color of law,' is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation." Ibid.[12] Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.[13] *533 While Parratt is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply "impracticable" since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the "practicability" of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent. If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state postdeprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.[14] *534 Respondent presses two arguments that require at least brief comment. First, he contends that, because an agent of the state who intends to deprive a person of his property "can provide predeprivation process, then as a matter of due process he must do so." Brief for Respondent and Cross-Petitioner 8 (emphasis in original). This argument reflects a fundamental misunderstanding of Parratt. There we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of a negligent deprivation of property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process. Respondent also contends, citing to Logan v. Zimmerman Brush Co., supra, that the deliberate destruction of his property by petitioner constituted a due process violation despite the availability of postdeprivation remedies. Brief for Respondent and Cross-Petitioner 8. In Logan, we decided a question about which our decision in Parratt left little doubt, that is, whether a postdeprivation state remedy satisfies due process where the property deprivation is effected pursuant to an established state procedure. We held that it does not. Logan plainly has no relevance here. Respondent does not even allege that the asserted destruction of his property occurred pursuant to a state procedure. Having determined that Parratt extends to intentional deprivations of property, we need only decide whether the Commonwealth of Virginia provides respondent an adequate postdeprivation remedy for the alleged destruction of his property. Both the District Court and, at least implicitly, the Court of Appeals held that several common-law remedies *535 available to respondent would provide adequate compensation for his property loss. We have no reason to question that determination, particularly given the speculative nature of respondent's arguments. Palmer does not seriously dispute the adequacy of the existing state-law remedies themselves. He asserts in this respect only that, because certain of his legal papers allegedly taken "may have contained things irreplacable [sic], and incompensable" or "may also have involved sentimental items which are of equally intangible value," Brief for Respondent and Cross-Petitioner 10-11, n. 10, a suit in tort, for example, would not "necessarily" compensate him fully. If the loss is "incompensable," this is as much so under § 1983 as it would be under any other remedy. In any event, that Palmer might not be able to recover under these remedies the full amount which he might receive in a § 1983 action is not, as we have said, determinative of the adequacy of the state remedies. See Parratt, 451 U. S., at 544. Palmer contends also that relief under applicable state law "is far from certain and complete" because a state court might hold that petitioner, as a state employee, is entitled to sovereign immunity. Brief for Respondent and Cross-Petitioner 11. This suggestion is unconvincing. The District Court and the Court of Appeals held that respondent's claim would not be barred by sovereign immunity. As the District Court noted, under Virginia law, "a State employee may be held liable for his intentional torts," Elder v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372-373 (1967); see also Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979). Indeed, respondent candidly acknowledges that it is "probable that a Virginia trial court would rule that there should be no immunity bar in the present case." Brief for Respondent and Cross-Petitioner 14. Respondent attempts to cast doubt on the obvious breadth of Elder through the naked assertion that "the phrase `may *536 be held liable' could have meant . . . only the possibility of liability under certain circumstances rather than a blanket rule . . . ." Brief for Respondent and Cross-Petitioner 13. We are equally unpersuaded by this speculation. The language of Elder is unambiguous that employees of the Commonwealth do not enjoy sovereign immunity for their intentional torts, and Elder has been so read by a number of federal courts, as respondent concedes, see Brief for Respondent and Cross-Petitioner 13, n. 13. See, e. g., Holmes v. Wampler, 546 F. Supp. 500, 504 (ED Va. 1982); Irshad v. Spann, 543 F. Supp. 922, 928 (ED Va. 1982); Frazier v. Collins, 544 F. Supp. 109, 110 (ED Va. 1982); Whorley v. Karr, 534 F. Supp. 88, 89 (WD Va. 1981); Daughtry v. Arlington County, Va., 490 F. Supp. 307 (DC 1980).[15] In sum, it is evident here, as in Parratt, that the State has provided an adequate postdeprivation remedy for the alleged destruction of property. III We hold that the Fourth Amendment has no applicability to a prison cell. We hold also that, even if petitioner intentionally destroyed respondent's personal property during the challenged shakedown search, the destruction did not violate the Fourteenth Amendment since the Commonwealth of Virginia has provided respondent an adequate postdeprivation remedy. Accordingly, the judgment of the Court of Appeals reversing and remanding the District Court's judgment on respondent's *537A claim under the Fourth and Fourteenth Amendments is reversed. The judgment affirming the District Court's decision that respondent has not been denied due process under the Fourteenth Amendment is affirmed. It is so ordered.

We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists, should extend to intentional deprivations of property. I The facts underlying this dispute are relatively simple. Respondent Palmer is an inmate at the Bland Correctional Center in Bland, Va., serving sentences for forgery, uttering, grand larceny, and bank robbery convictions. On September 16, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a "shakedown" search of respondent's prison locker and cell for contraband. During the "shakedown," the officers discovered a ripped pillowcase in a trash can near respondent's cell bunk. Charges *520 against Palmer were instituted under the prison disciplinary procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record. Palmer subsequently brought this pro se action in United States District Court under 42 U.S. C. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search. Hudson denied each allegation; he moved for and was granted summary judgment. The District Court accepted respondent's allegations as true but held nonetheless, relying on that the alleged destruction of respondent's property, even if intentional, did not violate the Fourteenth Amendment because there were state tort remedies available to redress the deprivation, App. 31[1] and that the alleged harassment did not "rise to the level of a constitutional deprivation," The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. The court affirmed the District Court's holding that respondent was not deprived of his property without due process. The court acknowledged that we considered only a claim of negligent property deprivation in It agreed with the District Court, however, that the logic of applies equally to unauthorized intentional deprivations of property by state officials: "[O]nce it is assumed *521 that a postdeprivation remedy can cure an unintentional but negligent act causing injury, inflicted by a state agent which is unamenable to prior review, then that principle applies as well to random and unauthorized intentional acts."[2] The Court of Appeals did not discuss the availability and adequacy of existing state-law remedies; it presumably accepted as correct the District Court's statement of the remedies available under Virginia law.[3] The Court of Appeals reversed the summary judgment on respondent's claim that the shakedown search was unreasonable. The court recognized that authorized irregular unannounced shake-down searches of prison cells. But the court held that an individual prisoner has a "limited privacy right" in his cell entitling him to protection against searches conducted solely to harass or to[4] The shakedown of a single prisoner's property, said the court, is permissible *522 only if "done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the particular prisoner possessed contraband. Because the Court of Appeals concluded that the record reflected a factual dispute over whether the search of respondent's cell was routine or conducted to harass respondent, it held that summary judgment was inappropriate, and that a remand was necessary to determine the purpose of the cell search. We granted certiorari. We affirm in part and reverse in part. II A The first question we address is whether respondent has a right of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches.[5] As we have noted, the Court of Appeals held that the District Court's summary judgment in petitioner's favor was premature because respondent had a "limited privacy right" in his cell that might have been breached. The court concluded that, to protect this privacy right, shakedown searches of an individual's cell should be performed only "pursuant to an established program of conducting random *523 searches reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the prisoner possesses contraband. Petitioner contends that the Court of Appeals erred in holding that respondent had even a limited privacy right in his cell, and urges that we adopt the "bright line" rule that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection. We have repeatedly held that prisons are not beyond the reach of the Constitution. No "iron curtain" separates one from the other. Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. For example, we have held that invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to "prison security and discipline." Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts. Prisoners must be provided "reasonable opportunities" to exercise their religious freedom guaranteed under the First Amendment. Similarly, they retain those First Amendment rights of speech "not inconsistent with [their] status as prisoner[s] or with the legitimate penological objectives of the corrections system." They enjoy the protection of due process. And the Eighth Amendment ensures that they will not be subject to "cruel and unusual punishments." The continuing guarantee of these substantial rights to prison inmates is testimony to a belief that the way a society treats those who have transgressed *524 against it is evidence of the essential character of that society. However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. See These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." ; see also at 545-546 and cases cited; at The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, at chief among which is internal security, see Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction. We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell,[6] but the nature of our inquiry is well defined. *525 We must determine here, as in other Fourth Amendment contexts, if a "justifiable" expectation of privacy is at stake. The applicability of the Fourth Amendment turns on whether "the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." and cases cited. We must decide, in Justice Harlan's words, whether a prisoner's expectation of privacy in his prison cell is the kind of expectation that "society is prepared to recognize as `reasonable.' "[7] Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we *526 hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions. Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown as inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. Even a partial survey of the statistics on violent crime in our Nation's prisons illustrates the magnitude of the problem. During and the first half of 82, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same time frame. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium Additionally, informal statistics from the United States Bureau of Prisons show that in the federal system during there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in and 82 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel. Within this volatile "community," prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable *527 measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. In addition to these monumental tasks, it is incumbent upon these officials at the same time to maintain as sanitary an environment for the inmates as feasible, given the difficulties of the circumstances. The administration of a prison, we have said, is "at best an extraordinarily difficult undertaking." ; But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained. Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals," 417 U. S., A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells *528 required to ensure institutional security and internal order.[8] We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." The Court of Appeals was troubled by the possibility of searches conducted solely to harass inmates; it reasoned that a requirement that searches be conducted only pursuant to an established policy or upon reasonable suspicion would prevent such searches to the maximum extent possible. Of course, there is a risk of maliciously motivated searches, and of course, intentional harassment of even the most hardened criminals cannot be tolerated by a civilized society. However, we disagree with the court's proposed solution. The uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. The Court of Appeals candidly acknowledged that "the device [of random cell searches] is of obvious utility in achieving the goal of prison security." 697 F.2d, *529 A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for "planned random searches," and thus be able routinely to anticipate searches. The Supreme Court of Virginia identified the shortcomings of an approach such as that adopted by the Court of Appeals and the necessity of allowing prison administrators flexibility: "For one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or collectively, and their cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband." We share the concerns so well expressed by the Supreme Court and its view that wholly random searches are essential to the effective security of penal institutions. We, therefore, cannot accept even the concededly limited holding of the Court of Appeals. Respondent acknowledges that routine shakedowns of prison cells are essential to the effective administration of prisons. Brief for Respondent and Cross-Petitioner 7, n. 5. He contends, however, that he is constitutionally entitled not to be subjected to searches conducted only to harass. The crux of his claim is that "because searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose." This argument, *530 which assumes the answer to the predicate question whether a prisoner has a legitimate expectation of privacy in his prison cell at all, is merely a challenge to the reasonableness of the particular search of respondent's cell. Because we conclude that prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells, we need not address this issue. Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments." By the same token, there are adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property. See discussion infra, at 534-536.[9] B In his complaint in the District Court, in addition to his claim that the shakedown search of his cell violated his Fourth and Fourteenth Amendment privacy rights, respondent alleged under 42 U.S. C. that petitioner intentionally destroyed certain of his personal property during the search. This destruction, respondent contended, deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment. The District Court dismissed this portion of respondent's complaint for failure to state a claim. Reasoning under *531 it held that even an intentional destruction of property by a state employee does not violate due process if the state provides a meaningful postdeprivation remedy. The Court of Appeals affirmed. The question presented for our review in Palmer's cross-petition is whether our decision in should extend, as the Court of Appeals held, to intentional deprivations of property by state employees acting under color of state law.[10] In a state prisoner sued prison officials under 42 U.S. C. alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog deprived him of property without due process of law, in violation of the Fourteenth Amendment. The Court of Appeals for the Eighth Circuit had affirmed the District Court's summary judgment in the prisoner's favor. We reversed, holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy.[11] We viewed our decision in as consistent with prior cases recognizing that "either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some *532 meaningful means by which to assess the propriety of the State's action at some time after the initial taking. satisf[ies] the requirements of procedural due process." We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Under these circumstances, we observed: "It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under `color of law,' is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation." Ibid.[12] Two Terms ago, we reaffirmed our holding in in in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.[13] *533 While is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply "impracticable" since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the "practicability" of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent. If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state postdeprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.[14] *534 Respondent presses two arguments that require at least brief comment. First, he contends that, because an agent of the state who intends to deprive a person of his property "can provide predeprivation process, then as a matter of due process he must do so." Brief for Respondent and Cross-Petitioner 8 (emphasis in original). This argument reflects a fundamental misunderstanding of There we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of a negligent deprivation of property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process. Respondent also contends, citing to that the deliberate destruction of his property by petitioner constituted a due process violation despite the availability of postdeprivation remedies. Brief for Respondent and Cross-Petitioner 8. In Logan, we decided a question about which our decision in left little doubt, that is, whether a postdeprivation state remedy satisfies due process where the property deprivation is effected pursuant to an established state procedure. We held that it does not. Logan plainly has no relevance here. Respondent does not even allege that the asserted destruction of his property occurred pursuant to a state procedure. Having determined that extends to intentional deprivations of property, we need only decide whether the Commonwealth of Virginia provides respondent an adequate postdeprivation remedy for the alleged destruction of his property. Both the District Court and, at least implicitly, the Court of Appeals held that several common-law remedies *535 available to respondent would provide adequate compensation for his property loss. We have no reason to question that determination, particularly given the speculative nature of respondent's arguments. Palmer does not seriously dispute the adequacy of the existing state-law remedies themselves. He asserts in this respect only that, because certain of his legal papers allegedly taken "may have contained things irreplacable [sic], and incompensable" or "may also have involved sentimental items which are of equally intangible value," Brief for Respondent and Cross-Petitioner 10-11, n. 10, a suit in tort, for example, would not "necessarily" compensate him fully. If the loss is "incompensable," this is as much so under as it would be under any other remedy. In any event, that Palmer might not be able to recover under these remedies the full amount which he might receive in a action is not, as we have said, determinative of the adequacy of the state remedies. See Palmer contends also that relief under applicable state law "is far from certain and complete" because a state court might hold that petitioner, as a state employee, is entitled to sovereign immunity. Brief for Respondent and Cross-Petitioner 11. This suggestion is unconvincing. The District Court and the Court of Appeals held that respondent's claim would not be barred by sovereign immunity. As the District Court noted, under Virginia law, "a State employee may be held liable for his intentional torts," ; see also Indeed, respondent candidly acknowledges that it is "probable that a Virginia trial court would rule that there should be no immunity bar in the present case." Brief for Respondent and Cross-Petitioner 14. Respondent attempts to cast doubt on the obvious breadth of Elder through the naked assertion that "the phrase `may *536 be held liable' could have meant only the possibility of liability under certain circumstances rather than a blanket rule" Brief for Respondent and Cross-Petitioner 13. We are equally unpersuaded by this speculation. The language of Elder is unambiguous that employees of the Commonwealth do not enjoy sovereign immunity for their intentional torts, and Elder has been so read by a number of federal courts, as respondent concedes, see Brief for Respondent and Cross-Petitioner 13, n. 13. See, e. g., ; ; ; ; (DC 80).[15] In sum, it is evident here, as in that the State has provided an adequate postdeprivation remedy for the alleged destruction of property. III We hold that the Fourth Amendment has no applicability to a prison cell. We hold also that, even if petitioner intentionally destroyed respondent's personal property during the challenged shakedown search, the destruction did not violate the Fourteenth Amendment since the Commonwealth of Virginia has provided respondent an adequate postdeprivation remedy. Accordingly, the judgment of the Court of Appeals reversing and remanding the District Court's judgment on respondent's *537A claim under the Fourth and Fourteenth Amendments is reversed. The judgment affirming the District Court's decision that respondent has not been denied due process under the Fourteenth Amendment is affirmed. It is so ordered.

Justice Scalia

majority

At&T Mobility LLC v. Concepcion

https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/

https://www.courtlistener.com/api/rest/v3/clusters/2959735/

2010-040

Section 2 of the Federal Arbitration Act (FAA) makes agreements to arbitrate “valid, irrevocable, and enforce able, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2. We consider whether the FAA prohibits States from condition ing the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures. I In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LCC (AT&T).1 The con tract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” App. —————— 1 The Concepcions’ original contract was with Cingular Wireless. AT&T acquired Cingular in 2005 and renamed the company AT&T Mobility in 2007. Laster v. AT&T Mobility LLC, 584 F.3d 849, 852, n. 1 (CA9 2009). 2 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court to Pet. for Cert 61a.2 The agreement authorized AT&T to make unilateral amendments, which it did to the arbitra tion provision on several occasions. The version at issue in this case reflects revisions made in December 2006, which the parties agree are controlling. The revised agreement provides that customers may initiate dispute proceedings by completing a one-page No tice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submis sions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer re ceives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.3 The Concepcions purchased AT&T service, which was advertised as including the provision of free phones; they —————— 2 That provision further states that “the arbitrator may not consoli date more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.” App. to Pet. for Cert. 61a. 3 The guaranteed minimum recovery was increased in 2009 to $10,000. Brief for Petitioner 7. Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court were not charged for the phones, but they were charged $30.22 in sales tax based on the phones’ retail value. In March 2006, the Concepcions filed a complaint against AT&T in the United States District Court for the Southern District of California. The complaint was later consoli dated with a putative class action alleging, among other things, that AT&T had engaged in false advertising and fraud by charging sales tax on phones it advertised as free. In March 2008, AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Concepcions opposed the motion, contending that the ar bitration agreement was unconscionable and unlawfully exculpatory under California law because it disallowed classwide procedures. The District Court denied AT&T’s motion. It described AT&T’s arbitration agreement fa vorably, noting, for example, that the informal dispute resolution process was “quick, easy to use” and likely to “promp[t] full or . . . even excess payment to the customer without the need to arbitrate or litigate”; that the $7,500 premium functioned as “a substantial inducement for the consumer to pursue the claim in arbitration” if a dispute was not resolved informally; and that consumers who were members of a class would likely be worse off. Laster v. T-Mobile USA, Inc., 2008 WL 5216255, *11–*12 (SD Cal., Aug. 11, 2008). Nevertheless, relying on the California Supreme Court’s decision in Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P.3d 1100 (2005), the court found that the arbitration provision was unconscionable because AT&T had not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions. Laster, 2008 WL 5216255, *14. The Ninth Circuit affirmed, also finding the provision unconscionable under California law as announced in Discover Bank. Laster v. AT&T Mobility LLC, 584 F.3d 849, 855 (2009). It also held that the Discover Bank rule was not preempted by the FAA because that rule was 4 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court simply “a refinement of the unconscionability analysis applicable to contracts generally in California.” 584 F.3d, at 857. In response to AT&T’s argument that the Con cepcions’ interpretation of California law discriminated against arbitration, the Ninth Circuit rejected the conten tion that “ ‘class proceedings will reduce the efficiency and expeditiousness of arbitration’ ” and noted that “ ‘Discover Bank placed arbitration agreements with class action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.’ ” Id., at 858 (quoting Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976, 990 (CA9 2007)). We granted certiorari, 560 U. S. ___ (2010). II The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements. See Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 581 (2008). Section 2, the “primary substantive provision of the Act,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), provides, in relevant part, as follows: “A written provision in any maritime transaction or a contract evidencing a transaction involving com merce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2. We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone, supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. ____ , ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006), and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989). The final phrase of §2, however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by “generally applicable con tract defenses, such as fraud, duress, or unconscionabil ity,” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996); see also Perry v. Thomas, 482 U.S. 483, 492–493, n. 9 (1987). The question in this case is whether §2 preempts California’s rule clas sifying most collective-arbitration waivers in consumer contracts as unconscionable. We refer to this rule as the Discover Bank rule. Under California law, courts may refuse to enforce any contract found “to have been unconscionable at the time it was made,” or may “limit the application of any uncon scionable clause.” Cal. Civ. Code Ann. §1670.5(a) (West 1985). A finding of unconscionability requires “a ‘proce dural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” Armen dariz v. Foundation Health Pyschcare Servs., Inc., 24 Cal. 4th 83, 114, 6 P.3d 669, 690 (2000); accord, Discover Bank, 36 Cal. 4th, at 159–161, 113 P.3d, at 1108. In Discover Bank, the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows: “[W]hen the waiver is found in a consumer contract of 6 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of con sumers out of individually small sums of money, then . . . the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are uncon scionable under California law and should not be en forced.” Id., at 162, 113 P. 3d, at 1110 (quoting Cal. Civ. Code Ann. §1668). California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc., 142 Cal. App. 4th 1442, 1451–1453, 48 Cal. Rptr. 3d 813, 819–821 (2006); Klussman v. Cross Country Bank, 134 Cal. App. 4th 1283, 1297, 36 Cal Rptr. 3d 728, 738–739 (2005); Aral v. EarthLink, Inc., 134 Cal. App. 4th 544, 556–557, 36 Cal. Rptr. 3d 229, 237–239 (2005). III A The Concepcions argue that the Discover Bank rule, given its origins in California’s unconscionability doctrine and California’s policy against exculpation, is a ground that “exist[s] at law or in equity for the revocation of any contract” under FAA §2. Moreover, they argue that even if we construe the Discover Bank rule as a prohibition on collective-action waivers rather than simply an application of unconscionability, the rule would still be applicable to all dispute-resolution contracts, since California prohibits waivers of class litigation as well. See America Online, Inc. v. Superior Ct., 90 Cal. App. 4th 1, 17–18, 108 Cal. Rptr. 2d 699, 711–713 (2001). When state law prohibits outright the arbitration of a Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v. Ferrer, 552 U.S. 346, 353 (2008). But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration. In Perry v. Thomas, 482 U.S. 483 (1987), for example, we noted that the FAA’s preemptive effect might extend even to grounds tradition ally thought to exist “ ‘at law or in equity for the revocation of any contract.’ ” Id., at 492, n. 9 (emphasis deleted). We said that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what . . . the state legislature cannot.” Id., at 493, n. 9. An obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to pro vide for judicially monitored discovery. The rationaliza tions for such a holding are neither difficult to imagine nor different in kind from those articulated in Discover Bank. A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory—re stricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. See Discover Bank, supra, at 161, 113 P. 3d, at 1109 (arguing that class waivers are similarly one-sided). And, the reasoning would continue, because such a rule applies the general principle of uncon scionability or public-policy disapproval of exculpatory agreements, it is applicable to “any” contract and thus preserved by §2 of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration 8 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court agreements; but it would presumably apply to contracts purporting to restrict discovery in litigation as well. Other examples are easy to imagine. The same argu ment might apply to a rule classifying as unconscionable arbitration agreements that fail to abide by the Federal Rules of Evidence, or that disallow an ultimate disposition by a jury (perhaps termed “a panel of twelve lay arbitra tors” to help avoid preemption). Such examples are not fanciful, since the judicial hostility towards arbitration that prompted the FAA had manifested itself in “a great variety” of “devices and formulas” declaring arbitration against public policy. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 406 (CA2 1959). And al though these statistics are not definitive, it is worth not ing that California’s courts have been more likely to hold contracts to arbitrate unconscionable than other contracts. Broome, An Unconscionable Application of the Uncon scionability Doctrine: How the California Courts are Cir cumventing the Federal Arbitration Act, 3 Hastings Bus. L. J. 39, 54, 66 (2006); Randall, Judicial Attitudes Toward Arbitration and the Resurgence of Unconscionability, 52 Buffalo L. Rev. 185, 186–187 (2004). The Concepcions suggest that all this is just a parade of horribles, and no genuine worry. “Rules aimed at destroy ing arbitration” or “demanding procedures incompatible with arbitration,” they concede, “would be preempted by the FAA because they cannot sensibly be reconciled with Section 2.” Brief for Respondents 32. The “grounds” available under §2’s saving clause, they admit, “should not be construed to include a State’s mere preference for pro cedures that are incompatible with arbitration and ‘would wholly eviscerate arbitration agreements.’ ” Id., at 33 (quoting Carter v. SSC Odin Operating Co., LLC, 237 Ill. 2d 30, 50, 927 N.E.2d 1207, 1220 (2010)).4 —————— 4 The dissent seeks to fight off even this eminently reasonable conces Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court We largely agree. Although §2’s saving clause preserves generally applicable contract defenses, nothing in it sug gests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives. Cf. Geier v. American Honda Motor Co., 529 U.S. 861, 872 (2000); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–373 (2000). As we have said, a federal statute’s saving clause “ ‘cannot in reason be construed as [allowing] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.’ ” American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U.S. 214, 227–228 (1998) (quoting Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907)). We differ with the Concepcions only in the application of this analysis to the matter before us. We do not agree that rules requiring judicially monitored discovery or adher ence to the Federal Rules of Evidence are “a far cry from this case.” Brief for Respondents 32. The overarching purpose of the FAA, evident in the text of §§2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbi tration interferes with fundamental attributes of arbitra tion and thus creates a scheme inconsistent with the FAA. B The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to —————— sion. It says that to its knowledge “we have not . . . applied the Act to strike down a state statute that treats arbitrations on par with judicial and administrative proceedings,” post, at 10 (opinion of BREYER, J.), and that “we should think more than twice before invalidating a state law that . . . puts agreements to arbitrate and agreements to litigate ‘upon the same footing’ ” post, at 4–5. 10 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court their terms.” Volt, 489 U.S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accor dance with the terms of the agreement” upon the motion of either party to the agreement (assuming that the “making of the arbitration agreement or the failure . . . to perform the same” is not at issue). In light of these provisions, we have held that parties may agree to limit the issues subject to arbitration, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985), to arbitrate according to specific rules, Volt, supra, at 479, and to limit with whom a party will arbitrate its disputes, Stolt-Nielsen, supra, at ___ (slip op., at 19). The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. It can be speci fied, for example, that the decisionmaker be a specialist in the relevant field, or that proceedings be kept confidential to protect trade secrets. And the informality of arbitral proceedings is itself desirable, reducing the cost and in creasing the speed of dispute resolution. 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 20); Mitsubishi Motors Corp., supra, at 628. The dissent quotes Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219 (1985), as “ ‘reject[ing] the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims.’ ” Post, at 4 (opinion of BREYER, J.). That is greatly misleading. After saying (accurately enough) that “the overriding goal of the Arbitration Act was [not] to promote the expeditious reso Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court lution of claims,” but to “ensure judicial enforcement of privately made agreements to arbitrate,” 470 U.S., at 219, Dean Witter went on to explain: “This is not to say that Congress was blind to the potential benefit of the legisla tion for expedited resolution of disputes. Far from it . . . .” Id., at 220. It then quotes a House Report saying that “the costliness and delays of litigation . . . can be largely eliminated by agreements for arbitration.” Ibid. (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 2 (1924)). The concluding paragraph of this part of its discussion begins as follows: “We therefore are not persuaded by the argument that the conflict between two goals of the Arbitration Act—enforcement of private agreements and encour agement of efficient and speedy dispute resolution— must be resolved in favor of the latter in order to real ize the intent of the drafters.” 470 U.S., at 221. In the present case, of course, those “two goals” do not conflict—and it is the dissent’s view that would frustrate both of them. Contrary to the dissent’s view, our cases place it beyond dispute that the FAA was designed to promote arbitration. They have repeatedly described the Act as “embod[ying] [a] national policy favoring arbitration,” Buckeye Check Cashing, 546 U.S., at 443, and “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary,” Moses H. Cone, 460 U.S., at 24; see also Hall Street As socs., 552 U.S., at 581. Thus, in Preston v. Ferrer, holding preempted a state-law rule requiring exhaustion of admin istrative remedies before arbitration, we said: “A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,’ ” which objective would be “frustrated” by requiring a dispute to be heard by an agency first. 552 U.S., at 357–358. That 12 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court rule, we said, would “at the least, hinder speedy resolution of the controversy.” Id., at 358.5 California’s Discover Bank rule similarly interferes with arbitration. Although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post. The rule is limited to adhesion con tracts, Discover Bank, 36 Cal. 4th, at 162–163, 113 P.3d, at 1110, but the times in which consumer contracts were anything other than adhesive are long past.6 Carbajal v. H&R Block Tax Servs., Inc., 372 F.3d 903, 906 (CA7 2004); see also Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1149 (CA7 1997). The rule also requires that damages be predictably small, and that the consumer allege a scheme to cheat consumers. Discover Bank, supra, at 162–163, 113 P.3d, at 1110. The former requirement, however, is —————— 5 Relying upon nothing more indicative of congressional understand ing than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact . . . [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] never theless held . . . that agreements to arbitrate in that context are en forceable.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991); see also id., at 32–33 (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration. 6 Of course States remain free to take steps addressing the concerns that attend contracts of adhesion—for example, requiring class-action waiver provisions in adhesive agreements to be highlighted. Such steps cannot, however, conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their terms. Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court toothless and malleable (the Ninth Circuit has held that damages of $4,000 are sufficiently small, see Oestreicher v. Alienware Corp., 322 Fed. Appx. 489, 492 (2009) (unpub lished)), and the latter has no limiting effect, as all that is required is an allegation. Consumers remain free to bring and resolve their disputes on a bilateral basis under Dis cover Bank, and some may well do so; but there is little incentive for lawyers to arbitrate on behalf of individuals when they may do so for a class and reap far higher fees in the process. And faced with inevitable class arbitration, companies would have less incentive to continue resolving potentially duplicative claims on an individual basis. Although we have had little occasion to examine class wide arbitration, our decision in Stolt-Nielsen is instruc tive. In that case we held that an arbitration panel ex ceeded its power under §10(a)(4) of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background prin ciple of contract law that would affect its interpretation. 559 U. S., at ___ (slip op., at 20–23). We then held that the agreement at issue, which was silent on the question of class procedures, could not be interpreted to allow them because the “changes brought about by the shift from bilateral arbitration to class-action arbitration” are “fun damental.” Id., at ___ (slip op., at 22). This is obvious as a structural matter: Classwide arbitration includes absent parties, necessitating additional and different procedures and involving higher stakes. Confidentiality becomes more difficult. And while it is theoretically possible to select an arbitrator with some expertise relevant to the class-certification question, arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties. The conclusion follows that class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the FAA. 14 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court First, the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its in formality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment. “In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” 559 U. S., at ___ (slip op., at 21). But before an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the class itself may be certified, whether the named parties are suffi ciently representative and typical, and how discovery for the class should be conducted. A cursory comparison of bilateral and class arbitration illustrates the difference. According to the American Arbitration Association (AAA), the average consumer arbitration between January and August 2007 resulted in a disposition on the merits in six months, four months if the arbitration was conducted by documents only. AAA, Analysis of the AAA’s Con sumer Arbitration Caseload, online at http://www.adr.org/ si.asp?id=5027 (all Internet materials as visited Apr. 25, 2011, and available in Clerk of Court’s case file). As of September 2009, the AAA had opened 283 class arbitra tions. Of those, 121 remained active, and 162 had been settled, withdrawn, or dismissed. Not a single one, how ever, had resulted in a final award on the merits. Brief for AAA as Amicus Curiae in Stolt-Nielsen, O. T. 2009, No. 08–1198, pp. 22–24. For those cases that were no longer active, the median time from filing to settlement, with drawal, or dismissal—not judgment on the merits—was 583 days, and the mean was 630 days. Id., at 24.7 —————— 7 The dissent claims that class arbitration should be compared to class litigation, not bilateral arbitration. Post, at 6–7. Whether arbi Cite as: 563 U. S. ____ (2011) 15 Opinion of the Court Second, class arbitration requires procedural formality. The AAA’s rules governing class arbitrations mimic the Federal Rules of Civil Procedure for class litigation. Com pare AAA, Supplementary Rules for Class Arbitrations (effective Oct. 8, 2003), online at http://www.adr.org/ sp.asp?id=21936, with Fed. Rule Civ. Proc. 23. And while parties can alter those procedures by contract, an alterna tive is not obvious. If procedures are too informal, absent class members would not be bound by the arbitration. For a class-action money judgment to bind absentees in litiga tion, class representatives must at all times adequately represent absent class members, and absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811–812 (1985). At least this amount of process would presumably be required for ab sent parties to be bound by the results of arbitration. We find it unlikely that in passing the FAA Congress meant to leave the disposition of these procedural re quirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover Bank, class arbitration is a “relatively recent development.” 36 Cal. 4th, at 163, 113 P. 3d, at 1110. And it is at the very least odd to think that an arbitrator would be entrusted with ensuring that third parties’ due process rights are satisfied. Third, class arbitration greatly increases risks to defen dants. Informal procedures do of course have a cost: The absence of multilayered review makes it more likely that errors will go uncorrected. Defendants are willing to accept the costs of these errors in arbitration, since their —————— trating a class is more desirable than litigating one, however, is not relevant. A State cannot defend a rule requiring arbitration-by-jury by saying that parties will still prefer it to trial-by-jury. 16 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. But when damages allegedly owed to tens of thou sands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims. Other courts have noted the risk of “in terrorem” settlements that class actions entail, see, e.g., Kohen v. Pacific Inv. Management Co. LLC, 571 F.3d 672, 677–678 (CA7 2009), and class arbitration would be no different. Arbitration is poorly suited to the higher stakes of class litigation. In litigation, a defendant may appeal a certifi cation decision on an interlocutory basis and, if unsuccess ful, may appeal from a final judgment as well. Questions of law are reviewed de novo and questions of fact for clear error. In contrast, 9 U.S. C. §10 allows a court to vacate an arbitral award only where the award “was procured by corruption, fraud, or undue means”; “there was evident partiality or corruption in the arbitrators”; “the arbitrators were guilty of misconduct in refusing to postpone the hearing . . . or in refusing to hear evidence pertinent and material to the controversy[,] or of any other misbehavior by which the rights of any party have been prejudiced”; or if the “arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award . . . was not made.” The AAA rules do authorize judicial re view of certification decisions, but this review is unlikely to have much effect given these limitations; review un der §10 focuses on misconduct rather than mistake. And parties may not contractually expand the grounds or nature of judicial review. Hall Street Assocs., 552 U.S., at 578. We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to Cite as: 563 U. S. ____ (2011) 17 Opinion of the Court allow state courts to force such a decision.8 The Concepcions contend that because parties may and sometimes do agree to aggregation, class procedures are not necessarily incompatible with arbitration. But the same could be said about procedures that the Concepcions admit States may not superimpose on arbitration: Parties could agree to arbitrate pursuant to the Federal Rules of Civil Procedure, or pursuant to a discovery process rival ing that in litigation. Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expecta tions. Rent-A-Center, West, 561 U. S., at ___ (slip op., at 3). But what the parties in the aforementioned examples would have agreed to is not arbitration as envisioned by the FAA, lacks its benefits, and therefore may not be required by state law. The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. See post, at 9. But States can not require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons. Moreover, the claim here was most unlikely to go unresolved. As noted earlier, the arbitration agreement provides that AT&T will pay claimants a minimum of $7,500 and twice their attorney’s fees if they obtain an arbitration award greater than AT&T’s last settlement offer. The District Court —————— 8 The dissent cites three large arbitration awards (none of which stems from classwide arbitration) as evidence that parties are willing to submit large claims before an arbitrator. Post, at 7–8. Those examples might be in point if it could be established that the size of the arbitral dispute was predictable when the arbitration agreement was entered. Otherwise, all the cases prove is that arbitrators can give huge awards—which we have never doubted. The point is that in class action arbitration huge awards (with limited judicial review) will be entirely predictable, thus rendering arbitration unattractive. It is not reasonably deniable that requiring consumer disputes to be arbitrated on a classwide basis will have a substantial deterrent effect on incen tives to arbitrate. 18 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court found this scheme sufficient to provide incentive for the individual prosecution of meritorious claims that are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who filed claims would be “essen tially guarantee[d]” to be made whole, 584 F.3d, at 856, n. 9. Indeed, the District Court concluded that the Concep cions were better off under their arbitration agreement with AT&T than they would have been as participants in a class action, which “could take months, if not years, and which may merely yield an opportunity to submit a claim for recovery of a small percentage of a few dollars.” Laster, 2008 WL 5216255, at *12. * * * Because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Con gress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941), Cali fornia’s Discover Bank rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 563 U. S. ____ (2011) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 09–893 _________________ AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.

Section 2 of the Federal Arbitration Act (FAA) makes agreements to arbitrate “valid, irrevocable, and enforce able, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. We consider whether the FAA prohibits States from condition ing the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures. I In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LCC (AT&T).1 The con tract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” App. —————— 1 The Concepcions’ original contract was with Cingular Wireless. AT&T acquired Cingular in and renamed the company AT&T Mobility in n. 1 2 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court to Pet. for Cert 61a.2 The agreement authorized AT&T to make unilateral amendments, which it did to the arbitra tion provision on several occasions. The version at issue in this case reflects revisions made in December 2006, which the parties agree are controlling. The revised agreement provides that customers may initiate dispute proceedings by completing a one-page No tice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submis sions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer re ceives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.3 The Concepcions purchased AT&T service, which was advertised as including the provision of free phones; they —————— 2 That provision further states that “the arbitrator may not consoli date more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.” App. to Pet. for Cert. 61a. 3 The guaranteed minimum recovery was increased in to $10,000. Brief for Petitioner 7. Cite as: 563 U. S. (2011) 3 Opinion of the Court were not charged for the phones, but they were charged $30.22 in sales tax based on the phones’ retail value. In March 2006, the Concepcions filed a complaint against AT&T in the United States District Court for the Southern District of California. The complaint was later consoli dated with a putative class action alleging, among other things, that AT&T had engaged in false advertising and fraud by charging sales tax on phones it advertised as free. In March 2008, AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Concepcions opposed the motion, contending that the ar bitration agreement was unconscionable and unlawfully exculpatory under California law because it disallowed classwide procedures. The District Court denied AT&T’s motion. It described AT&T’s arbitration agreement fa vorably, noting, for example, that the informal dispute resolution process was “quick, easy to use” and likely to “promp[t] full or even excess payment to the customer without the need to arbitrate or litigate”; that the $7,500 premium functioned as “a substantial inducement for the consumer to pursue the claim in arbitration” if a dispute was not resolved informally; and that consumers who were members of a class would likely be worse off. Laster v. T-Mobile USA, Inc., *11–*12 Nevertheless, relying on the California Supreme Court’s decision in Discover the court found that the arbitration provision was unconscionable because AT&T had not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions. Laster, The Ninth Circuit affirmed, also finding the provision unconscionable under California law as announced in Discover 584 F.3d 849, 855 It also held that the Discover rule was not preempted by the FAA because that rule was 4 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court simply “a refinement of the unconscionability analysis applicable to contracts generally in California.” 584 F.3d, at 857. In response to AT&T’s argument that the Con cepcions’ interpretation of California law discriminated against arbitration, the Ninth Circuit rejected the conten tion that “ ‘class proceedings will reduce the efficiency and expeditiousness of arbitration’ ” and noted that “ ‘Discover placed arbitration agreements with class action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.’ ” ). We granted certiorari, 560 U. S. II The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements. See Hall Street Associates, L. L. 581 Section 2, the “primary substantive provision of the Act,” Moses H. Memorial provides, in relevant part, as follows: “A written provision in any maritime transaction or a contract evidencing a transaction involving com merce to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. at and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. (slip op., at 3). In line with these principles, courts must place arbitration Cite as: 563 U. S. (2011) 5 Opinion of the Court agreements on an equal footing with other contracts, Buckeye Check 443 (2006), and enforce them according to their terms, Information Sciences, The final phrase of however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by “generally applicable con tract defenses, such as fraud, duress, or unconscionabil ity,” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Doctor’s Associates, Inc. v. Casarotto, ; see also Perry v. Thomas, The question in this case is whether preempts California’s rule clas sifying most collective-arbitration waivers in consumer contracts as unconscionable. We refer to this rule as the Discover rule. Under California law, courts may refuse to enforce any contract found “to have been unconscionable at the time it was made,” or may “limit the application of any uncon scionable clause.” Cal. Civ. Code Ann. A finding of unconscionability requires “a ‘proce dural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” Armen dariz v. Foundation Health Pyschcare Servs., Inc., Cal. 4th 83, 114, ; accord, Discover –, In Discover the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows: “[W]hen the waiver is found in a consumer contract of 6 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of con sumers out of individually small sums of money, then the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are uncon scionable under California law and should not be en forced.” (quoting Cal. Civ. Code Ann. California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc., 1451–1453, 48 Cal. Rptr. 3d 813, 819–821 (2006); Klussman v. Cross Country 36 Cal Rptr. 3d 728, 738–739 ; III A The Concepcions argue that the Discover rule, given its origins in California’s unconscionability doctrine and California’s policy against exculpation, is a ground that “exist[s] at law or in equity for the revocation of any contract” under FAA Moreover, they argue that even if we construe the Discover rule as a prohibition on collective-action waivers rather than simply an application of unconscionability, the rule would still be applicable to all dispute-resolution contracts, since California prohibits waivers of class litigation as well. See America Online, 17–18, 108 Cal. Rptr. 2d 699, 711–713 (2001). When state law prohibits outright the arbitration of a Cite as: 563 U. S. (2011) 7 Opinion of the Court particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v. Ferrer, But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration. In for example, we noted that the FAA’s preemptive effect might extend even to grounds tradition ally thought to exist “ ‘at law or in equity for the revocation of any contract.’ ” We said that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what the state legislature cannot.” An obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to pro vide for judicially monitored discovery. The rationaliza tions for such a holding are neither difficult to imagine nor different in kind from those articulated in Discover A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory—re stricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. See Discover at (arguing that class waivers are similarly one-sided). And, the reasoning would continue, because such a rule applies the general principle of uncon scionability or public-policy disapproval of exculpatory agreements, it is applicable to “any” contract and thus preserved by of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration 8 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court agreements; but it would presumably apply to contracts purporting to restrict discovery in litigation as well. Other examples are easy to imagine. The same argu ment might apply to a rule classifying as unconscionable arbitration agreements that fail to abide by the Federal Rules of Evidence, or that disallow an ultimate disposition by a jury (perhaps termed “a panel of twelve lay arbitra tors” to help avoid preemption). Such examples are not fanciful, since the judicial hostility towards arbitration that prompted the FAA had manifested itself in “a great variety” of “devices and formulas” declaring arbitration against public policy. Robert Lawrence And al though these statistics are not definitive, it is worth not ing that California’s courts have been more likely to hold contracts to arbitrate unconscionable than other contracts. Broome, An Unconscionable Application of the Uncon scionability Doctrine: How the California Courts are Cir cumventing the Federal Arbitration Act, 3 Hastings Bus. L. J. 39, 54, 66 (2006); Randall, Judicial Attitudes Toward Arbitration and the Resurgence of Unconscionability, 52 Buffalo L. Rev. 185, 186–187 (2004). The Concepcions suggest that all this is just a parade of horribles, and no genuine worry. “Rules aimed at destroy ing arbitration” or “demanding procedures incompatible with arbitration,” they concede, “would be preempted by the FAA because they cannot sensibly be reconciled with Section 2.” Brief for Respondents 32. The “grounds” available under ’s saving clause, they admit, “should not be construed to include a State’s mere preference for pro cedures that are incompatible with arbitration and ‘would wholly eviscerate arbitration agreements.’ ” ).4 —————— 4 The dissent seeks to fight off even this eminently reasonable conces Cite as: 563 U. S. (2011) 9 Opinion of the Court We largely agree. Although ’s saving clause preserves generally applicable contract defenses, nothing in it sug gests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives. Cf. ; Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–373 As we have said, a federal statute’s saving clause “ ‘cannot in reason be construed as [allowing] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.’ ” American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 5 U.S. 214, 227–228 (1998) ). We differ with the Concepcions only in the application of this analysis to the matter before us. We do not agree that rules requiring judicially monitored discovery or adher ence to the Federal Rules of Evidence are “a far cry from this case.” Brief for Respondents 32. The overarching purpose of the FAA, evident in the text of § 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbi tration interferes with fundamental attributes of arbitra tion and thus creates a scheme inconsistent with the FAA. B The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to —————— sion. It says that to its knowledge “we have not applied the Act to strike down a state statute that treats arbitrations on par with judicial and administrative proceedings,” post, at 10 (opinion of BREYER, J.), and that “we should think more than twice before invalidating a state law that puts agreements to arbitrate and agreements to litigate ‘upon the same footing’ ” post, at 4–5. 10 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court their terms.” 489 U.S., at ; see also S. A. v. AnimalFeeds Int’l 559 U. S. (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and requires courts to compel arbitration “in accor dance with the terms of the agreement” upon the motion of either party to the agreement (assuming that the “making of the arbitration agreement or the failure to perform the same” is not at issue). In light of these provisions, we have held that parties may agree to limit the issues subject to arbitration, Mitsubishi Motors to arbitrate according to specific rules, and to limit with whom a party will arbitrate its disputes, at (slip op., at 19). The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. It can be speci fied, for example, that the decisionmaker be a specialist in the relevant field, or that proceedings be kept confidential to protect trade secrets. And the informality of arbitral proceedings is itself desirable, reducing the cost and in creasing the speed of dispute resolution. 14 Penn Plaza LLC v. Pyett, 556 U. S. (slip op., at 20); Mitsubishi Motors at The dissent quotes Dean Witter Reynolds as “ ‘reject[ing] the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims.’ ” Post, at 4 (opinion of BREYER, J.). That is greatly misleading. After saying (accurately enough) that “the overriding goal of the Arbitration Act was [not] to promote the expeditious reso Cite as: 563 U. S. (2011) 11 Opinion of the Court lution of claims,” but to “ensure judicial enforcement of privately made agreements to arbitrate,” 470 U.S., at Dean Witter went on to explain: “This is not to say that Congress was blind to the potential benefit of the legisla tion for expedited resolution of disputes. Far from it” It then quotes a House Report saying that “the costliness and delays of litigation can be largely eliminated by agreements for arbitration.” (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 2 (19)). The concluding paragraph of this part of its discussion begins as follows: “We therefore are not persuaded by the argument that the conflict between two goals of the Arbitration Act—enforcement of private agreements and encour agement of efficient and speedy dispute resolution— must be resolved in favor of the latter in order to real ize the intent of the drafters.” In the present case, of course, those “two goals” do not conflict—and it is the dissent’s view that would frustrate both of them. Contrary to the dissent’s view, our cases place it beyond dispute that the FAA was designed to promote arbitration. They have repeatedly described the Act as “embod[ying] [a] national policy favoring arbitration,” Buckeye Check and “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary,” Moses H. 460 U.S., at ; see also Hall Street As Thus, in Preston v. Ferrer, holding preempted a state-law rule requiring exhaustion of admin istrative remedies before arbitration, we said: “A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,’ ” which objective would be “frustrated” by requiring a dispute to be heard by an agency –358. That 12 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court rule, we said, would “at the least, hinder speedy resolution of the controversy.”5 California’s Discover rule similarly interferes with arbitration. Although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post. The rule is limited to adhesion con tracts, Discover 36 Cal. 4th, –163, 113 P.3d, at 1110, but the times in which consumer contracts were anything other than adhesive are long past.6 Carbajal v. H&R Block Tax Servs., Inc., (CA7 2004); see also Hill v. Gateway Inc., 1149 (CA7 1997). The rule also requires that damages be predictably small, and that the consumer allege a scheme to cheat consumers. Discover –163, The former requirement, however, is —————— 5 Relying upon nothing more indicative of congressional understand ing than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] never theless held that agreements to arbitrate in that context are en forceable.” Gilmer v. Interstate/Johnson Lane (1991); see also at 32– (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 19 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration. 6 Of course States remain free to take steps addressing the concerns that attend contracts of adhesion—for example, requiring class-action waiver provisions in adhesive agreements to be highlighted. Such steps cannot, however, conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their terms. Cite as: 563 U. S. (2011) 13 Opinion of the Court toothless and malleable (unpub lished)), and the latter has no limiting effect, as all that is required is an allegation. Consumers remain free to bring and resolve their disputes on a bilateral basis under Dis cover and some may well do so; but there is little incentive for lawyers to arbitrate on behalf of individuals when they may do so for a class and reap far higher fees in the process. And faced with inevitable class arbitration, companies would have less incentive to continue resolving potentially duplicative claims on an individual basis. Although we have had little occasion to examine class wide arbitration, our decision in is instruc tive. In that case we held that an arbitration panel ex ceeded its power under of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background prin ciple of contract law that would affect its interpretation. 559 U. S., at (slip op., at 20–23). We then held that the agreement at issue, which was silent on the question of class procedures, could not be interpreted to allow them because the “changes brought about by the shift from bilateral arbitration to class-action arbitration” are “fun damental.” at (slip op., at 22). This is obvious as a structural matter: Classwide arbitration includes absent parties, necessitating additional and different procedures and involving higher stakes. Confidentiality becomes more difficult. And while it is theoretically possible to select an arbitrator with some expertise relevant to the class-certification question, arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties. The conclusion follows that class arbitration, to the extent it is manufactured by Discover rather than consensual, is inconsistent with the FAA. 14 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court First, the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its in formality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment. “In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” 559 U. S., at (slip op., at 21). But before an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the class itself may be certified, whether the named parties are suffi ciently representative and typical, and how discovery for the class should be conducted. A cursory comparison of bilateral and class arbitration illustrates the difference. According to the American Arbitration Association (AAA), the average consumer arbitration between January and August resulted in a disposition on the merits in six months, four months if the arbitration was conducted by documents only. AAA, Analysis of the AAA’s Con sumer Arbitration Caseload, online at http://www.adr.org/ si.asp?id=5027 (all Internet materials as visited Apr. 25, 2011, and available in Clerk of Court’s case file). As of September the AAA had opened 283 class arbitra tions. Of those, 121 remained active, and had been settled, withdrawn, or dismissed. Not a single one, how ever, had resulted in a final award on the merits. Brief for AAA as Amicus Curiae in O. T. No. 08–1198, pp. 22–. For those cases that were no longer active, the median time from filing to settlement, with drawal, or dismissal—not judgment on the merits—was 583 days, and the mean was 630 days. at7 —————— 7 The dissent claims that class arbitration should be compared to class litigation, not bilateral arbitration. Post, at 6–7. Whether arbi Cite as: 563 U. S. (2011) 15 Opinion of the Court Second, class arbitration requires procedural formality. The AAA’s rules governing class arbitrations mimic the Federal Rules of Civil Procedure for class litigation. Com pare AAA, Supplementary Rules for Class Arbitrations (effective Oct. 8, 2003), online at http://www.adr.org/ sp.asp?id=36, with Fed. Rule Civ. Proc. 23. And while parties can alter those procedures by contract, an alterna tive is not obvious. If procedures are too informal, absent class members would not be bound by the arbitration. For a class-action money judgment to bind absentees in litiga tion, class representatives must at all times adequately represent absent class members, and absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class. Phillips Petroleum Co. v. Shutts, At least this amount of process would presumably be required for ab sent parties to be bound by the results of arbitration. We find it unlikely that in passing the FAA Congress meant to leave the disposition of these procedural re quirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover class arbitration is a “relatively recent development.” And it is at the very least odd to think that an arbitrator would be entrusted with ensuring that third parties’ due process rights are satisfied. Third, class arbitration greatly increases risks to defen dants. Informal procedures do of course have a cost: The absence of multilayered review makes it more likely that errors will go uncorrected. Defendants are willing to accept the costs of these errors in arbitration, since their —————— trating a class is more desirable than litigating one, however, is not relevant. A State cannot defend a rule requiring arbitration-by-jury by saying that parties will still prefer it to trial-by-jury. 16 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. But when damages allegedly owed to tens of thou sands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims. Other courts have noted the risk of “in terrorem” settlements that class actions entail, see, e.g., Kohen v. Pacific Inv. Management Co. LLC, 7–8 and class arbitration would be no different. Arbitration is poorly suited to the higher stakes of class litigation. In litigation, a defendant may appeal a certifi cation decision on an interlocutory basis and, if unsuccess ful, may appeal from a final judgment as well. Questions of law are reviewed de novo and questions of fact for clear error. In contrast, 9 U.S. C. allows a court to vacate an arbitral award only where the award “was procured by corruption, fraud, or undue means”; “there was evident partiality or corruption in the arbitrators”; “the arbitrators were guilty of misconduct in refusing to postpone the hearing or in refusing to hear evidence pertinent and material to the controversy[,] or of any other misbehavior by which the rights of any party have been prejudiced”; or if the “arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award was not made.” The AAA rules do authorize judicial re view of certification decisions, but this review is unlikely to have much effect given these limitations; review un der focuses on misconduct rather than mistake. And parties may not contractually expand the grounds or nature of judicial review. Hall Street As, 552 U.S., at 578. We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to Cite as: 563 U. S. (2011) 17 Opinion of the Court allow state courts to force such a decision.8 The Concepcions contend that because parties may and sometimes do agree to aggregation, class procedures are not necessarily incompatible with arbitration. But the same could be said about procedures that the Concepcions admit States may not superimpose on arbitration: Parties could agree to arbitrate pursuant to the Federal Rules of Civil Procedure, or pursuant to a discovery process rival ing that in litigation. Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expecta tions. Rent-A-Center, West, 561 U. S., at (slip op., at 3). But what the parties in the aforementioned examples would have agreed to is not arbitration as envisioned by the FAA, lacks its benefits, and therefore may not be required by state law. The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. See post, at 9. But States can not require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons. Moreover, the claim here was most unlikely to go unresolved. As noted earlier, the arbitration agreement provides that AT&T will pay claimants a minimum of $7,500 and twice their attorney’s fees if they obtain an arbitration award greater than AT&T’s last settlement offer. The District Court —————— 8 The dissent cites three large arbitration awards (none of which stems from classwide arbitration) as evidence that parties are willing to submit large claims before an arbitrator. Post, at 7–8. Those examples might be in point if it could be established that the size of the arbitral dispute was predictable when the arbitration agreement was entered. Otherwise, all the cases prove is that arbitrators can give huge awards—which we have never doubted. The point is that in class action arbitration huge awards (with limited judicial review) will be entirely predictable, thus rendering arbitration unattractive. It is not reasonably deniable that requiring consumer disputes to be arbitrated on a classwide basis will have a substantial deterrent effect on incen tives to arbitrate. 18 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court found this scheme sufficient to provide incentive for the individual prosecution of meritorious claims that are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who filed claims would be “essen tially guarantee[d]” to be made n. 9. Indeed, the District Court concluded that the Concep cions were better off under their arbitration agreement with AT&T than they would have been as participants in a class action, which “could take months, if not years, and which may merely yield an opportunity to submit a claim for recovery of a small percentage of a few dollars.” Laster, * * * Because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Con gress,” Cali fornia’s Discover rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 563 U. S. (2011) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–893 AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.

Justice Souter

second_dissenting

Seminole Tribe of Fla. v. Florida

https://www.courtlistener.com/opinion/118011/seminole-tribe-of-fla-v-florida/

https://www.courtlistener.com/api/rest/v3/clusters/118011/

1995-037

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concurring opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. Louisiana, 134 U.S. 1 (1890). Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in Union Gas, which the Court now overrules and repudiates. The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent. *101 I It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress. The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction;[1] there was no unanimity, but in due course the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases. The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the *102 Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of Hans `s holding that States did enjoy sovereign immunity in federal-question suits. The Hans Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of Hans `s reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives. The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again. Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the Hans doctrine to be outside the reach of Congress, but must also displace the doctrine of Ex parte Young, 209 U.S. 123 (1908), that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing Young `s jurisdictional doctrine withstand scrutiny. A The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is *103 not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3-4 (1963).[2] The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts." C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries *244-*245; Jaffe, supra, at 2 ("By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nomine in his own courts"). The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs, supra, at 6-7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1895-1899 (1983). *104 Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 536-538 (1977). The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under § 2 of Article III included questions arising under federal law and cases between States *105 and individuals who are not citizens,[3] it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.[4] Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, at 142-150; for now it is enough to say that there was no consensus on the issue. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 263-280 (1985) (Brennan, J., dissenting); Nevada v. Hall, 440 U.S. 410, 419 (1979); Jacobs, supra, at 40 ("[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding, at the time of ratification, that the states would retain their sovereign immunity"). There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the *106 debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article III would not alter States' pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article III or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention. B The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in Chisholm v. Georgia, 2 Dall. 419 (1793), chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.[5] The case also settled, by implication, *107 any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or "arising under") head of jurisdiction *108 as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article III than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana, 57 U. Chi. L. Rev. 1260, 1270 (1990). Although Justice Iredell's dissent in Chisholm seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, Chisholm, supra, at 434-435, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, at 78-81, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1789, not Article III. See also Orth, The Truth About Justice Iredell's Dissent in Chisholm v. Georgia (1793), 73 N. C. L. Rev. 255 (1994). This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." 2 Dall., at 435 (emphasis deleted). While in at least some circumstances States might be held liable to "the authority of the United States," id., at 436, any such liability *109 would depend upon "laws passed under the Constitution and in conformity to it," ibid.[6] Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.[7] C The Eleventh Amendment, of course, repudiated Chisholm and clearly divested federal courts of some jurisdiction as to cases against state parties: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity *110 Clauses of Article III for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the Hans doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do. The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses.[8] In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common *111 sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federalquestion suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect: "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 (Feb. 20, 1793). With its references to suits by citizens as well as noncitizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty and thus be subject to federal-question jurisdiction under Article III. Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1789-1800, pp. 352-449 (M. Marcus ed. 1994).[9] *112 Congress took no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question jurisdiction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1280-1282 (1989). It should accordingly come as no surprise that the weightiest commentary following the Amendment's adoption described it simply as constricting the scope of the CitizenState Diversity Clauses. In Cohens v. Virginia, 6 Wheat. 264 (1821), for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article III and concluded that "a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case." Id., at 383. The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, *113 not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." Id., at 407. The treatment of the Amendment in Osborn v. Bank of United States, 9 Wheat. 738 (1824), was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. Id., at 847. The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction.[10] And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a *114 private plaintiff for money damages. See, e. g., Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See Atascadero State Hospital v. Scanlon, 473 U. S., at 294 (Brennan, J., dissenting); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 44 (1988). In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts." Ante, at 54.[11] Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits *115 against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.[12] Because the plaintiffs in today's case are citizens of the *116 State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.[13] II The obvious place to look elsewhere, of course, is Hans v. Louisiana, 134 U.S. 1 (1890), and Hans was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in Hans raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without *117 more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See id., at 9. Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in Hans had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with Hans `s holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.[14] It follows that the Court's further step today of constitutionalizing Hans `s rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of Hans itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law. A The Louisiana plaintiff in Hans held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating *118 industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (1988); Gibbons, 83 Colum. L. Rev., at 1976-1977. As Reconstruction governments collapsed, however, the postReconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana's attempt to renege on its bond obligations. Hans sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federalquestion jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit Hans's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." Hans, 134 U. S., at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. Id., at 10-11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased. Hans thus addressed the issue implicated (though not directly raised) in the preratification debate about the CitizenState Diversity Clauses and implicitly settled by Chisholm: whether state sovereign immunity was cognizable by federal *119 courts on the exercise of federal-question jurisdiction. According to Hans, and contrary to Chisholm, it was. But that is all that Hans held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.[15] Taking Hans only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal-question suit, but not one brought by a noncitizen. See Hans, supra, at 10-11. There was, however, no such anomaly at all. As already explained, federalquestion cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana. Although there was thus no anomaly to be cured by Hans, the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article III with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV, infra ) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme. *120 "Different States may entertain different opinions on the true construction of the constitutional powers of congress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. . . . States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." Cohens v. Virginia, 6 Wheat., at 386-387. And yet that is just what Hans threatened to do. How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, Hans was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (1987); Gibbons, supra, at 1978— *121 1982; see generally Foner, Reconstruction, at 575-587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Gibbons, 83 Colum. L. Rev., at 1981. Contract Clause suits like the one brought by Hans thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Id., at 1974. Indeed, Louisiana's brief in Hans unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt.[16] *122 So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.[17] Before *123 considering those errors, it is necessary to address the Court's contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress. B The majority does not dispute the point that Hans v. Louisiana, 134 U.S. 1 (1890), had no occasion to decide whether Congress could abrogate a State's immunity from federalquestion suits. The Court insists, however, that the negative answer to that question that it finds in Hans and subsequent opinions is not "mere obiter dicta, but rather . . . the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone *124 cannot bar a federal-question suit against a State brought by a state citizen. See, e. g., Edelman v. Jordan, 415 U.S. 651, 662 (1974) (acknowledging that "the Amendment by its terms does not bar suits against a State by its own citizens").[18] Indeed, as I have noted, Justice Bradley's opinion in Hans conceded that Hans might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." 134 U.S., at 10. The Hans Court, rather, held the suit barred by a nonconstitutional common-law immunity. See supra, at 116-117. The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of Monaco v. Mississippi, 292 U.S. 313, 321-323 (1934). There, the Court said that "we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States." Id., at 322.[19] This statement certainly is true to Hans, which *125 clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide Hans and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went. The majority, however, would read the "rationale" of Hans and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article III jurisdiction, Monaco, supra, at 322, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this conclusion. See, e. g., Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98 (1984) ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U.S. 490, 497 (1921) ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . ."). These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.[20] But this *126 is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., Dellmuth v. Muth, 491 U.S. 223, 229, n. 2 (1989) (noting that "an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens," without suggesting that the immunity was unalterable by Congress),[21] or have suggested that the Hans immunity is not of constitutional stature. The very language quoted by the majority from Monaco, for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U.S., at 322. Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.[22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante, at 72, "postulate," Nevada v. Hall, 440 U. S., at 437 (Rehnquist, J., dissenting), or "implicit limitation," Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 496 (1987) (Scalia, J., concurring in part and concurring in judgment), and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944), rather than any explicit constitutional *127 provision.[23] But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself. The most damning evidence for the Court's theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post-Hans dicta in cases where that dicta would have mattered.[24] If it is indeed true that "private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., at 40 (Scalia, J., concurring in part and dissenting in part), then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238 (recognizing that immunity may be waived). After all, consent of a party is in all other instances wholly insufficient to create subjectmatter *128 jurisdiction where it would not otherwise exist. See, e. g., Sosna v. Iowa, 419 U.S. 393, 398 (1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405 (2d ed. 1994) (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See supra, at 109-116. If "the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," Duhne v. New Jersey, 251 U.S. 311, 313 (1920), and if consent to suit in state court is not sufficient to show consent in federal court, see Atascadero, supra, at 241, then Article III would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post-Hans dicta in that sort of case and exercised the jurisdiction that the plain text of Article III provides. See, e. g., Fulton Corp. v. Faulkner, 516 U.S. 325 (1996); see also supra, at 113-114. If these examples were not enough to distinguish Hans `s rationale of a pre-existing doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when § 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion), in Welch v. Texas Dept. of Highways and Public Transp., supra, at 475 (plurality opinion), and in County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 252 *129 (1985).[25] Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and Welch, on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U.S. C. § 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of Hans immunity had been well established for a hundred years. Hans itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial . . . ought not to outweigh" present reasoning that points to a different conclusion. 134 U.S., at 20. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379 (1994) ("It is to the holdings of our cases, rather than their dicta, that we *130 must attend"); Bennis v. Michigan, 516 U.S. 442, 450 (1996). But because the Court disregards this norm today, I must consider the soundness of Hans `s original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of Hans `s holding to the point of rendering its immunity unalterable by Congress. III Three critical errors in Hans weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra, at 118-123. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it. A There is and could be no dispute that the doctrine of sovereign immunity that Hans purported to apply had its origins in the "familiar doctrine of the common law," The Siren, 7 Wall. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U.S. 196, 205 (1882).[26] Although statutes came to affect its importance *131 in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (1768). Here, as in the mother country, it remained a common-law rule. See generally Jaffe, 77 Harv. L. Rev., at 2-19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17-41 (1926). This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Hans Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must *132 have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore . . . [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 (1824). But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.[27] An examination of the States' experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with Hans `s resort to a common-law principle to limit the Constitution's contrary text. 1 This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that "[t]he *133 process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles." P. Reinsch, English Common Law in the Early American Colonies 58 (1899).[28] For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.[29] It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See id., at 7-8; Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, *134 797 (1951).[30] But even in the late colonial period, Americans insisted that "the whole body of the common law ... was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence." Dale, The Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554 (1882).[31] The result was that "the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences inlaw in action on the two sides of the Atlantic." Hall, supra, at 797. *135 Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean Pound has observed that, "[f]or a generation after the Revolution, . . . political conditions gave rise to a general distrust of English law. . . . The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. Pound, The Formative Era of American Law 7 (1938); see also C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that "`the application of the principles of the English common law to our constitution' " should be considered "`good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).[32] Nor was anti-English sentiment *136 the only difficulty; according to Dean Pound, "[s]ocial and geographical conditions contributed also to make the work of receiving and reshaping the common law exceptionally difficult." Pound, supra, at 7. The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions.[33] As Justice Story explained, "[t]he common *137 law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 144 (1829). In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." Pound, supra, at 20; see also Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new States). 2 While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas *138 corpus, U. S. Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229— 230 (1971).[34] This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326 ("I do not believe one man can be found" who maintains "that the common law of England has . . .been adopted as the common law of America by the Constitution of the United States"); Jay II, at 1255 (noting that the use of the term "laws" in Article III "could not have been meant to accomplish a general reception of British common law"). Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. Antifederalists like George Mason went so far as to object that *139 under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliot's Debates 446-449 (Patrick Henry, Virginia Convention). In particular, the Anti federalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, at 1256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain," id., at 1257.[35] While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 451 (George Nicholas, Virginia Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see id., at 469-470 (Edmund Randolph, Virginia Convention), and not subject to revision by Congress, id., at 550 (Edmund Pendleton, Virginia Convention); see also infra, at 163-164. The Framers also recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on the Virginia Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) *140 (Alien and Sedition Laws).[36] In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, at 1056; Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 401 (1968) ("The assumption that colonial law was essentially the same in all colonies is wholly without foundation"), and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed. Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response *141 to the Anti federalist claim that Article III granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e. g., 3 Elliot's Debates 553 (John Marshall, Virginia Convention) ("Has the government of the United States power to make laws on every subject? . . . Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II, at 1260.[37] That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law. Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison insisted that "the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country." Alien and Sedition Laws 381. See also 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 651-655 (discussing *142 the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, at 1254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution . . . "). Madison concluded that "[i]t is . . . distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law—a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382. B Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Hans Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, at 72. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federalquestion jurisdiction. 1 As I have already noted briefly, see supra, at 105-106, the Framers and their contemporaries did not agree about the *143 place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.[38] Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article III, so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See id., at 533 (Madison: the Constitution "give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it");[39]id., at 556 (Marshall: "I see a difficulty *144 in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in The Federalist No. 81: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1045-1054 (1983) (discussing the adoption of the Citizen-State Diversity Clauses); Gibbons, 83 Colum. L. Rev., at 1902-1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante, at 70. But there is no such mandate to be found. As I have already said, the immediate context of Hamilton's discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion "that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities." The Federalist No. 81, at 548. Hamilton is plainly talking about a *145 suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article III. The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts: "A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." Id., at 549. The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Hans Court relied in part upon Hamilton's statement, see 134 U.S., at 20, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas Hans involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81. Hamilton says that a State is "not . . . amenable to the suit of an individual without its consent . . . . [u]nless . . . there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548-549 (emphasis deleted). He *146 immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." Id., at 549. The reference is to The Federalist No. 32, also by Hamilton, which has this to say about the alienation of state sovereignty: "[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and re- pugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." Id., at 200 (emphasis in original). As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects: "It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article *147 by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty." Id., at 202 (emphasis in original). The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations . . . the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S., at 234.[40] We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 170-171 (1973) (internal quotation marks omitted); see also Rice v. Olson, 324 U.S. 786, 789 (1945) ("The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's *148 history").[41] We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-222 (1987). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong. Quite apart, however, from its application to this particular Act of Congress exercising the Indian commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects committed expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (recognizing power of States to engage in some regulation of interstate commerce), when a congressional statute not only binds the States but even creates an affirmative obligation on the State *149 as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If infact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely. In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's The Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court's position. Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.[42] The Court's difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling *150 for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic. 2 We said in Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991), that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed ifeach State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, § 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state . . ."). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States' exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy. As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e. g., U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty").[43] Before the new federal scheme appeared, 18thcentury *151 political theorists had assumed that "there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." B. Bailyn, The Ideological Origins of the American Revolution 198 (1967); see also Wood 345.[44] The American development of divided sovereign powers, which "shatter[ed] . . . the categories of government that had dominated Western thinking for centuries," id., at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See id., at 530 (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convincingly refuted the Anti federalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "`resides in the PEOPLE, as the fountain of government' " (citing 1 Pennsylvania and the Federal Constitution, 1787-1788, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).[45] The People possessing this plenary bundle of specific powers *152 were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 (1985). As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitution, 1787-1788, supra, at 302.[46] Under such a scheme, Alexander Hamilton explained, "[i]t does not follow . . . that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects. " Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original).[47] A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." 2 Dall., at 435. And to the same point was Chief Justice Marshall's *153 description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819). Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one.[48] The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.) ("A sovereign is exempt from suit . . . on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends").[49] But the ratification demonstrated *154 that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall, 440 U. S., at 416, where we considered a suit against a State in another State's courts: "This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Cf. United States v. Texas, 143 U.S. 621, 646 (1892) (recognizing that a suit by the National Government against a State "does no violence to the inherent nature of sovereignty"). Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here governments are acting within the bounds of their delegated `sovereign' power, they may partake of sovereign immunity; where *155 not, not." Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1490-1491, n. 261 (1987). State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318— 319 (remarks of J. Madison).[50] These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution also dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, § 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority. Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave *156 the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See also Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1367-1371 (1989) (discussing the Framers' concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment). This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, *157 to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federalquestion cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6-7.[51] The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.[52] *158 Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, at 71.[53] But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible *159 to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State? C The considerations expressed so far, based on text, Chisholm, caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in Hans and, even more strongly, to the error of today's holding. Although for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous essays in constitutionalizing common-law rules at the expense of legislative authority. 1 I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians also took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence *160 that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation. The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian, "[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. . . . Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. . . . [T]he power to modify or even entirely to repeal the common law . . . now fell explicitly within the jurisdiction of the legislature." W. Nelson, Americanization of the Common Law 90 (1975).[54] Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall *161 be altered by a future law . . . ." N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).[55] Just as the early state *162 governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.[56] *163 I have already indicated that the Framers did not forget the state-law examples. When Anti federalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A (emphasis in original).[57] Madison went on to insist that *164 "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." Ibid.[58] Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as . . . of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . . . [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous . . . ." Id., at 381.[59] *165 2 History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this *166 century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with Lochner v. New York, 198 U.S. 45 (1905).[60] It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the commonlaw background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., Adkins v. Childrens Hospital of D. C., 261 U.S. 525, 557 (1923) (finding abrogation of common-law freedom to contract for any wage an unconstitutional "compulsory exaction"); see generally Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987). And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court. The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of *167 which is to limit the exercise of governmental power. See, e. g., Adair v. United States, 208 U.S. 161 (1908). Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction. I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago: "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted). This position was no less in conflict with American constitutionalism in 1798 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "background" principles, without more, may be used to confine a clear constitutional provision: "[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I *168 cannot think that, under such a government, any Court of Justice would possess a power to declare it so. . . . ". .. [I]t has been the policy of the American states,. .. and of the people of the United States .. .to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. . .. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." Id., at 398-399 (emphasis deleted) (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (1980). It should take more than references to "background principle[s]," ante, at 72, and "implicit limitation[s]," Welch, 483 U. S., at 496 (Scalia, J., concurring in part and concurring in judgment), to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation. *169 IV The Court's holding that the States' Hans immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amendment or Hans and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte Young, 209 U.S. 123 (1908), and the case could, and should, readily be decided on this point alone. A In Ex parte Young, this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under Young, "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." Quern v. Jordan, 440 U.S. 332, 337 (1979); see also Milliken v. Bradley, 433 U.S. 267, 289 (1977). The fact, without more, that such suits may have a significant impact on state governments does not count under Young. Milliken, for example, was a suit, under the authority of Young, brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public Instruction, *170 and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State's obligation to implement. To take another example, Quern v. Jordan involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since Young was decided, the Court has recognized only one limitation on the scope of its doctrine: under Edelman v. Jordan, 415 U.S. 651 (1974), Young permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief. It should be no cause for surprise that Young itself appeared when it did in the national law. It followed as a matter of course after the Hans Court's broad recognition of immunity in federal-question cases, simply because "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Green v. Mansour, 474 U.S. 64, 68 (1985). Young provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in Hans with the principles embodied in the Supremacy Clause and Article III. If Young may be seen as merely the natural consequence of Hans, it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of Young isso far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that *171 long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. See Jaffe, 77 Harv. L. Rev., at 3, 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp. 28-29, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921). An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it]did not take the form of a suit against the Crown," Jaffe, supra, at 1, was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. Jaffe, 77 Harv. L. Rev., at 9. Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, "operat[ing] directly on the government; [and commanding] an officer not as an individual but as a functionary." Id., at 16. Thus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus ." The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.). B This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as Hans would later open the door to Ex parte Young itself. Once, then, the Eleventh Amendment was understood to forbid suit *172 against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." Jaffe, 77 Harv. L. Rev., at 20. "It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counter pressure for the enforcement of constitutional limits on the states. The upshot . . . was to confine the amendment's prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property." Id., at 20-21. The earliest cases, United States v. Peters, 5 Cranch 115 (1809), and Osborn v. Bank of United States, 9 Wheat. 738 (1824), embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of Georgia v. Madrazo, 1 Pet. 110, 123-124 (1828), shifted this analysis somewhat, finding that a Governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the *173 fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., Davis v. Gray, 16 Wall. 203 (1873) (applying Osborn by enjoining the Governor of Texas to interfere with the possession of land granted by the State); United States v. Lee, 106 U.S. 196 (1882) (applying Osborn in context of federal sovereign immunity). This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in Louisiana v. Jumel, 107 U.S. 711 (1883), where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 S. Ct. Rev. 149, 152. (One recalls the circumstances of Hans itself, see supra, at 117-121.) The Court, however, again applied Osborn in the Virginia Coupon Cases, 114 U.S. 269 (1885) (permitting injunctions, restitution, and damages against state officers who seized property to collect taxes already paid with interest coupons the State had agreed to accept). In re Ayers, 123 U.S. 443, 502 (1887), sought to rationalize the competing strands of doctrine on the ground that an action may be "sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." Ex parte Young restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer's action "is simply an illegal act upon the part of a state official in attempting *174 by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte Young, 209 U. S., at 159-160. The decision in Ex parte Young, and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. "Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. . . . If the state could not constitutionally authorize the act then Young was not acting by its authority." Orth, Judicial Power of the United States, at 133. The doctrine we call Ex parte Young is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also Chemerinsky, Federal Jurisdiction, at 393. A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such *175 an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte Young without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "affec[t] the federal balance," United States v. Bass, 404 U.S. 336, 349 (1971). See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute' ") (quoting Atascadero State Hospital v. Scanlon, 473 U. S., at 242); Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991). Our habitual caution makes sense for just the reason we mentioned in Dellmuth v. Muth, 491 U. S., at 230-231: it is "difficult to believe that . . . Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest." C There is no question that by its own terms Young `s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman `s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in Young, or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders Young unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply Young. There is no adequate reason for its refusal. No clear statement of intent to displace the doctrine of Ex parte Young occurs in IGRA, and the Court is instead *176 constrained to rest its effort to skirt Young on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying Young would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of Young. 1 The Court cites Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of Young. The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante, at 74. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "additional" remedy under Ex parte Young. Ante, at 73-76. Chilicky `s remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward looking on the Bivens model, running against a federal official in his personal capacity, and requiring an *177 affirmative justification (as Bivens does). See Bivens, supra; FDIC v. Meyer, 510 U.S. 471, 484-486 (1994). The Bivens issue in Chilicky (and in Meyer ) is different from the Young issue here in every significant respect. Young is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. Young does not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. Young would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article III court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky `s standards for imposing the burden to justify a supplementary scheme of tort law to the displacement of Young `s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit. 2 Next, the Court suggests that it may be justified in displacing Young because Young would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. Young did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount *178 federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself). Young does no more and furnishes no authority for the Court's assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on Young for federal jurisdiction.[61] If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on Young, the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte Young that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the Hans doctrine). See Young, 209 U. S., at 167-168; Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-690 (1949).[62] And yet Congress has imposed *179 a number of restrictions upon the habeas remedy, see, e. g., 28 U.S. C. § 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., McCleskey v. Zant, 499 U.S. 467 (1991) (abuse of the writ); Teague v. Lane, 489 U.S. 288 (1989) (limiting applicability of "new rules" on habeas); Brecht v. Abrahamson, 507 U.S. 619 (1993) (applying a more deferential harmless-error standard on habeas review). By suggesting that Ex parte Young provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under Young rather than 28 U.S. C. § 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes.[63] This, of course, cannot be the law, and the plausible rationale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on Young as it has to regulate when Young is out of the jurisdictional picture. If Young does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then Young does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer. 3 The Court's third strand of reasoning for displacing Ex parte Young is a supposed inference that Congress so intended. *180 Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which Young provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude Young `s application. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind. IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under Young. It provides that "[t]he United States district courts shall have jurisdiction over . . . any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such negotiations in good faith." 25 U.S. C. § 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate.[64] The door is so obviously just as open to jurisdiction over an officer under Young as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that Young might well be the jurisdictional basis for enforcement action. But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of Young. An order requiring a "State" to comply with federal *181 law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte Young and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state-court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U.S. C. § 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State." It may be that even the Court agrees, for it falls back to the position, see ante, at 75, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169 (1992), makes that distinction abundantly clear. Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of Young `s traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of *182 a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions. D There is, finally, a response to the Court's rejection of Young that ought to go without saying. Our long-standing practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("`every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' ") (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). This practice alone (without any need for a clear statement to displace Young ) would be enough to require Young `s application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas ). NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-501 (1979). Construing the statute to harmonize with Young, as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone. V Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate Hans immunity. Since the reasons for this position, as explained in Parts II—III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans `s holding as a matter of stare decisis. *183 The Hans doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect. In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,[65] they would not be modified without deliberately expressed intent. See Gregory v. Ashcroft, 501 U. S., at 460-461. The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United States v. Bass, 404 U. S., at 349, is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests," Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985).[66] Hence, we *184 have required such a plain statement when Congress preempts the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), imposes a condition on the grant of federal moneys, South Dakota v. Dole, 483 U.S. 203, 207 (1987), or seeks to regulate a State's ability to determine the qualifications of its own officials, Gregory, supra, at 464. When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., Welch v. Texas Dept. of Highways & Public Transp., 483 U. S., at 475; Atascadero State Hospital v. Scanlon, 473 U. S., at 239-240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas ) we have never found the requirement to be met outside the context of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plainstatement rule is an adequate check on congressional overreaching, and that today's abandonment of that approach is wholly unwarranted. There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases: *185 "The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed." Cohens v. Virginia, 6 Wheat., at 379-380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III, I would reverse the judgment of the Court of Appeals.

In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concurring opinion in There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was the holding in Union Gas, which the Court now overrules and repudiates. The fault I find with the majority today is not in its decision to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting congressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamentally mistaken, and for that reason I respectfully dissent. * I It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress. The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction;[1] there was no unanimity, but in due course the Court in answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases. The adoption of the Eleventh Amendment soon changed the result in not by mentioning sovereign immunity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the *102 Eleventh Amendment did not affect federal-question jurisdiction, a notion that needs to be understood for the light it casts on the soundness of `s holding that States did enjoy sovereign immunity in federal-question suits. The Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of `s reasoning is underscored by its clear inconsistency with the Founders' hostility to the implicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives. The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again. Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the doctrine to be outside the reach of Congress, but must displace the doctrine of Ex parte 209 U.S. 1 that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing `s jurisdictional doctrine withstand scrutiny. A The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is *103 not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Suits Against Governments and Officers: Sovereign Immunity,[2] The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry (1216-1272), it was recognized that the king could not be sued in his own courts." C. Eleventh Amendment and Sovereign Immunity 5 (1972). See 3 W. Blackstone, Commentaries *244-*245; The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, *104 Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article And although the jurisdictional bases together constituting the judicial power of the national courts under 2 of Article included questions arising under federal law and cases between States *105 and individuals who are not citizens,[3] it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.[4] Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, 42-150; for now it is enough to say that there was no consensus on the issue. See State 473 U.S. 4, ; ; There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was clear: the *106 debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argument, since no clause in the proposed (and ratified) Constitution even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article would not alter States' pre-existing common-law immunity despite its unqualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article or any other provision would "constitutionalize" state sovereign immunity, and no one uttered any such contention. B The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpretation that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Georgia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.[5] The case settled, by implication, *107 any question there could possibly have been about recognizing state sovereign immunity in actions depending on the federal question (or "arising under") head of jurisdiction *108 as well. The constitutional text on federal-question jurisdiction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of any influence that general common-law immunity might have had as an interpretive force in construing constitutional language would presumably have been no greater when addressing the federal-question language of Article than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling v Louisiana, Although Justice Iredell's dissent in seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, 8-81, Justice Iredell's dissent focused on the construction of the Judiciary Act of 1, not Article See Orth, The Truth About Justice Iredell's Dissent in 73 N. C. L. Rev. 255 This would have been an odd focus, had he believed that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." While in at least some circumstances States might be held liable to "the authority of the United States," any such liability *109 would depend upon "laws passed under the Constitution and in conformity to it," ibid.[6] Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.[7] C The Eleventh Amendment, of course, repudiated and clearly divested federal courts of some jurisdiction as to cases against state parties: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity *110 Clauses of Article for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, furnishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the doctrine and the legitimacy of inflating that doctrine to the point of constitutional immutability as the Court has chosen to do. The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses.[8] In precisely tracking the language in Article providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common *111 sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federalquestion suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post- proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect: "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 With its references to suits by citizens as well as noncitizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty and thus be subject to federal-question jurisdiction under Article Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant mansion. 5 Documentary History of the Supreme Court of the United States, 1-1800, pp. 352-449[9] *112 Congress took no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question jurisdiction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from selling their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Eleventh Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, It should accordingly come as no surprise that the weightiest commentary following the Amendment's adoption described it simply as constricting the scope of the CitizenState Diversity Clauses. In for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article and concluded that "a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case." The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, *113 not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." 7. The treatment of the Amendment in was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has exempted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. The good sense of this early construction of the Amendment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's unconditional language ("shall not be construed") makes no distinction between trial and appellate jurisdiction.[10] And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a *114 private plaintiff for money damages. See, e. g., Commonwealth Edison ; Minneapolis Star & Tribune The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal jurisdiction is diversity of citizenship. See State 473 U. S., 94 ; Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, Yale L. J. 1, 44 (18). In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coherence with this Court's practice, with the views of John Marshall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is concerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article diversity jurisdiction of the federal courts." Ante, at 54.[11] Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no possible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen lawsuits *115 against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.[12] Because the plaintiffs in today's case are citizens of the *116 State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.[13] II The obvious place to look elsewhere, of course, is and was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without *117 more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See Although the Court invoked a principle of sovereign immunity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by noncitizen plaintiffs, the Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity recognized in had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with `s holding that a principle of sovereign immunity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.[14] It follows that the Court's further step today of constitutionalizing `s rule against abrogation by Congress compounds and immensely magnifies the century-old mistake of itself and takes its place with other historic examples of textually untethered elevations of judicially derived rules to the status of inviolable constitutional law. A The Louisiana plaintiff in held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruction era to finance public improvements aimed at stimulating *118 industrial development. E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, pp. 383-384 (18); -1977. As Reconstruction governments collapsed, however, the postReconstruction regimes sought to repudiate these debts, and the litigation arose out of Louisiana's attempt to renege on its bond obligations. sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federalquestion jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit 's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased. thus addressed the issue implicated (though not directly raised) in the preratification debate about the CitizenState Diversity Clauses and implicitly settled by : whether state sovereign immunity was cognizable by federal *119 courts on the exercise of federal-question jurisdiction. According to and contrary to it was. But that is all that held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.[15] Taking only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal-question suit, but not one brought by a noncitizen. See There was, however, no such anomaly at all. As already explained, federalquestion cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citizens and noncitizens alike. If had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana. Although there was thus no anomaly to be cured by the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV, infra ) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme. *120 "Different States may entertain different opinions on the true construction of the constitutional powers of congress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." -387. And yet that is just what threatened to do. How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explanation. As I have already said, was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presidential election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53-57 (17); 978— *121 12; see generally Foner, Reconstruction, at -587 (describing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Contract Clause suits like the one brought by thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state governments." Indeed, Louisiana's brief in unmistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Court found a way to avoid the certainty of the State's contempt.[16] *122 So it is that history explains, but does not honor, The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.[17] Before *1 considering those errors, it is necessary to address the Court's contention that subsequent cases have read into what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stature and therefore unalterable by Congress. B The majority does not dispute the point that had no occasion to decide whether Congress could abrogate a State's immunity from federalquestion suits. The Court insists, however, that the negative answer to that question that it finds in and subsequent opinions is not "mere obiter dicta, but rather the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66-67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone *124 cannot bar a federal-question suit against a State brought by a state citizen. See, e. g.,[18] Indeed, as I have noted, Justice Bradley's opinion in conceded that might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." The Court, rather, held the suit barred by a nonconstitutional common-law immunity. See The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of 321-3 There, the Court said that "we cannot rest with a mere literal application of the words of 2 of Article or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States."[19] This statement certainly is true to which *125 clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a nonconsenting State. That was the "rationale" which was sufficient to decide and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went. The majority, however, would read the "rationale" of and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article jurisdiction, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this See, e. g., Pennhurst State School and ; Ex parte New York, These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.[20] But this *126 is not the only weakness of these statements, which are counterbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., 491 U.S. 2,[21] or have suggested that the immunity is not of constitutional stature. The very language quoted by the majority from for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U.S., Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88-90.[22] More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "background principle," ante, 2, "postulate," or "implicit limitation," (17) and as resting on the "inherent nature of sovereignty," Great Northern Life Ins. rather than any explicit constitutional *127 provision.[] But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very different thing from reading them into the Founding Document itself. The most damning evidence for the Court's theory that rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disregard the post- dicta in cases where that dicta would have mattered.[24] If it is indeed true that "private suits against States [are] not permitted under Article (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., State 473 U. S., at 8 After all, consent of a party is in all other instances wholly insufficient to create subjectmatter *128 jurisdiction where it would not otherwise exist. See, e. g., U.S. 393, 3 ; see E. Chemerinsky, Federal Jurisdiction 7.6, p. 405 (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in rejecting an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See If "the whole sum of the judicial power granted by the Constitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," 2 U.S. 311, and if consent to suit in state court is not sufficient to show consent in federal court, see 41, then Article would hardly permit this Court to exercise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post- dicta in that sort of case and exercised the jurisdiction that the plain text of Article provides. See, e. g., Fulton 6 U.S. 325 ; see If these examples were not enough to distinguish `s rationale of a pre-existing doctrine of sovereign immunity from the post- dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immunity exists even when 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in in and in County of[25] Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U.S. C. 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of immunity had been well established for a hundred years. itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial ought not to outweigh" present reasoning that points to a different 134 U.S., 0. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., 1 U.S. 375, ; 6 U.S. 442, But because the Court disregards this norm today, I must consider the soundness of `s original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of `s holding to the point of rendering its immunity unalterable by Congress. Three critical errors in weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Court misread the Eleventh Amendment, see 18-1. It misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it. A There is and could be no dispute that the doctrine of sovereign immunity that purported to apply had its origins in the "familiar doctrine of the common law," The Siren, "derived from the laws and practices of our English ancestors," United[26] Although statutes came to affect its importance *131 in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their understanding of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (17). Here, as in the mother country, it remained a common-law rule. See generally 77 Harv. L. Rev., -19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17-41 (1926). This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Court and it should do the same for the Court today. For although the Court has persistently assumed that the common law's presence in the minds of the early Framers must *132 have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.[27] An examination of the States' experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with `s resort to a common-law principle to limit the Constitution's contrary text. 1 This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that "[t]he *133 process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles." P. Reinsch, English Common Law in the Early American Colonies 58 (1899).[28] For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.[29] It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See ; The Common Law: An Account of its Reception in the United States, *134 797 (19).[30] But even in the late colonial period, Americans insisted that "the whole body of the common law was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence." Dale, The Adoption of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554[31] The result was that "the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences inlaw in action on the two sides of the Atlantic." *135 Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean has observed that, "[f]or a generation after the Revolution, political conditions gave rise to a general distrust of English law. The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. The Formative Era of American Law 7 (1938); see C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that "`the application of the principles of the English common law to our constitution' " should be considered "`good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).[32] Nor was anti-English sentiment *136 the only difficulty; according to Dean "[s]ocial and geographical conditions contributed to make the work of receiving and reshaping the common law exceptionally difficult." The consequence of this anti-English hostility and awareness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions.[33] As Justice Story explained, "[t]he common *137 law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, 326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." 0; see Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new States). 2 While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of habeas *138 corpus, U. S. Const., Art. I, 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229— 0[34] This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, 326 ("I do not believe one man can be found" who maintains "that the common law of England hasbeen adopted as the common law of America by the Constitution of the United States"); Jay II, 255 (noting that the use of the term "laws" in Article "could not have been meant to accomplish a general reception of British common law"). Records of the ratification debates support Marshall's understanding that everyone had to know that the new Constitution would not draw the common law in its train. Antifederalists like George Mason went so far as to object that *139 under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see 3 Elliot's Debates 446-449 (Patrick Henry, Convention). In particular, the Anti federalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, 256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain,"[35] While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 4 (George Nicholas, Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see (Edmund Randolph, Convention), and not subject to revision by Congress, (Edmund Pendleton, Convention); see infra, 63-164. The Framers recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on the Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) *140 (Alien and Sedition Laws).[36] In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, 056; Stoebuck, Reception of English Common Law in the American Colonies, and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed. Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' response *141 to the Anti federalist claim that Article granted an unduly broad jurisdiction to the federal courts. That response was to emphasize the limited powers of the National Government. See, e. g., 3 Elliot's Debates 553 (John Marshall, Convention) ("Has the government of the United States power to make laws on every subject? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II, 260.[37] That answer assumes, of course, no generalized reception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any subject comprehended by the general common law. Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recognize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison insisted that "the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sovereignty of the States, and by one constructive operation new model the whole political fabric of the country." Alien and Sedition Laws 381. See 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 6-5 (discussing *142 the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, 254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution "). Madison concluded that "[i]t is distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law—a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382. B Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Court and the Court today cannot reasonably argue that something like the old immunity doctrine somehow slipped in as a tacit but enforceable background principle. But see ante, 2. The evidence is even more specific, however, that there was no pervasive understanding that sovereign immunity had limited federalquestion jurisdiction. 1 As I have already noted briefly, see the Framers and their contemporaries did not agree about the *143 place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.[38] Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madison, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judicial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See ;[39] at 556 (Marshall: "I see a difficulty * in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in The Federalist No. 81: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, ; -1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante, 0. But there is no such mandate to be found. As I have already said, the immediate context of Hamilton's discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion "that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities." The Federalist No. 81, at 548. Hamilton is plainly talking about a *145 suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts: "A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immunity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Court relied in part upon Hamilton's statement, see 134 U.S., 0, its reliance was misplaced; Hamilton was addressing diversity jurisdiction, whereas involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be inferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81. Hamilton says that a State is "not amenable to the suit of an individual without its consent [u]nless there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548-549 He *146 immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." The reference is to The Federalist No. 32, by Hamilton, which has this to say about the alienation of state sovereignty: "[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delegation or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and re- pugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." 00 As an instance of the last case, in which exercising concurrent jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects: "It is indeed possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article *147 by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty." 02 The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations the exclusive province of federal law." County of 470 U. S., at 4.[40] We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply." ; see[41] We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. (17). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong. Quite apart, however, from its application to this particular Act of Congress exercising the Indian commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects committed expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, when a congressional statute not only binds the States but even creates an affirmative obligation on the State *149 as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If infact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely. In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's The Federalist No. 81, with its reference to No. 32. Either way, he is no authority for the Court's position. Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.[42] The Court's difficulty is far more fundamental, however, than inconsistency with a particular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Framers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling *150 for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic. 2 We said in that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed ifeach State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state"). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous political event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal system that sought to balance the States' exercise of some sovereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy. As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolutionary turn than the late war had been. See, e. g., U. S. Term Limits, 4 U.S. ("Federalism was our Nation's own discovery. The Framers split the atom of sovereignty").[43] Before the new federal scheme appeared, 18thcentury *1 political theorists had assumed that "there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." B. Bailyn, The Ideological Origins of the American Revolution 1 (1967); see Wood 345.[44] The American development of divided sovereign powers, which "shatter[ed] the categories of government that had dominated Western thinking for centuries," was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convincingly refuted the Anti federalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power "`resides in the PEOPLE, as the fountain of government' " (citing 1 Pennsylvania and the Federal Constitution, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).[45] The People possessing this plenary bundle of specific powers *152 were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitution,[46] Under such a scheme, Alexander Hamilton explained, "[i]t does not follow that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects. " Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton (Syrett ed. 19)[47] A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Justice Iredell was to make the same observation in his dissent, commenting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." And to the same point was Chief Justice Marshall's * description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." Given this metamorphosis of the idea of sovereignty in the years leading up to 1, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal-question jurisdiction is a crucial one.[48] The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See, e. g., U.S. ("A sovereign is exempt from suit on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends").[49] But the ratification demonstrated *154 that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in where we considered a suit against a State in another State's courts: "This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Cf. United Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here governments are acting within the bounds of their delegated `sovereign' power, they may partake of sovereign immunity; where *155 not, not." Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1490-1491, n. 261 (17). State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors requiring the formation of a new government. 1 Farrand 318— 319 (remarks of J. Madison).[50] These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found concrete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immunities of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution dealt with the old problems affirmatively by granting the powers to Congress enumerated in Article I, 8, and by providing through the Supremacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority. Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave *156 the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speaking in the plural of an authority in the federal "courts," Hamilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton's power of the Government to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See Marshall, Fighting the Words of the Eleventh Amendment, This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, *157 to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federalquestion cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, 282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States,[] The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.[52] *158 Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the historical evidence regarding the Framers' vision of the relationship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries without the question of the existence of [the abrogation] power ever being presented to this Court." Ante, 1.[53] But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following ratification of Article (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible *159 to contend that the plan of the convention was meant to leave the National Government without any way to render individuals capable of enforcing their federal rights directly against an intransigent State? C The considerations expressed so far, based on text, caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in and, even more strongly, to the error of today's holding. Although for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous essays in constitutionalizing common-law rules at the expense of legislative authority. 1 I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legislators over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politicians took pains to guarantee that once a common-law rule had been received, it would always be subject to legislative alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insistence *160 that no common-law doctrine would be received by virtue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation. The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. According to one historian, "[s]hared ideas about the sovereignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of common law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. [T]he power to modify or even entirely to repeal the common law now fell explicitly within the jurisdiction of the legislature." W. Nelson, Americanization of the Common Law 90[54] Virtually every state reception provision, be it constitutional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299-300; Jones 99. The New Jersey Constitution of 1776, for instance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall *161 be altered by a future law" N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).[55] Just as the early state *162 governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.[56] *163 I have already indicated that the Framers did not forget the state-law examples. When Anti federalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A[57] Madison went on to insist that *164 "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." [58] Indeed, Madison anticipated, and rejected, the Court's approach today when he wrote that if "the common law be admitted as of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has always been lamented as incongruous and dangerous"[59] *1 2 History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this *166 century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with 1 U.S. 45[60] It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the commonlaw background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., (19) ; see generally Sunstein, Lochner's Legacy, (17). And yet the superseding lesson that seemed clear after West Coast Hotel 300 U.S. that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court. The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of *167 which is to limit the exercise of governmental power. See, e. g., Some textual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction. I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially discoverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago: "There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." (17) This position was no less in conflict with American constitutionalism in 17 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "background" principles, without more, may be used to confine a clear constitutional provision: "[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I *1 cannot think that, under such a government, any Court of Justice would possess a power to declare it so. ". [I]t has been the policy of the American states,. and of the people of the United Statesto define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." at 3-399 (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other positive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (10). It should take more than references to "background principle[s]," ante, 2, and "implicit limitation[s]," 483 U. S., at to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation. *169 IV The Court's holding that the States' immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amendment or and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte 209 U.S. 1 and the case could, and should, readily be decided on this point alone. A In Ex parte this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." ; see The fact, without more, that such suits may have a significant impact on state governments does not count under Milliken, for example, was a suit, under the authority of brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public Instruction, *170 and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State's obligation to implement. To take another example, involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since was decided, the Court has recognized only one limitation on the scope of its doctrine: under permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief. It should be no cause for surprise that itself appeared when it did in the national law. It followed as a matter of course after the Court's broad recognition of immunity in federal-question cases, simply because "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in with the principles embodied in the Supremacy Clause and Article If may be seen as merely the natural consequence of it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of isso far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that *171 long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government despite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. See 18-19; Ehrlich, No. XII: Proceedings Against the Crown (1216-1377), pp. 28-29, in 6 Oxford Studies in Social and Legal History An early example, from "time immemorial" of a claim "affecting the Crown [that] could be pursued in the regular courts [without consent since it]did not take the form of a suit against the Crown," was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrongfully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. 77 Harv. L. Rev., Following this example forward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of certiorari and mandamus, "operat[ing] directly on the government; [and commanding] an officer not as an individual but as a functionary." 6. Thus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus" The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.). B This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as would later open the door to Ex parte itself. Once, then, the Eleventh Amendment was understood to forbid suit *172 against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." 77 Harv. L. Rev., 0. "It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counter pressure for the enforcement of constitutional limits on the states. The upshot was to confine the amendment's prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property." 0-21. The earliest cases, United and embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34-35, 40-41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Governor of 1-124 shifted this analysis somewhat, finding that a Governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the *173 fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., ; United This simple rule for recognizing sovereign immunity without gutting substantial rights was temporarily muddled in where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 14 S. Ct. Rev. 149, 152. (One recalls the circumstances of itself, see 17-121.) The Court, however, again applied Osborn in the Coupon Cases, In re Ayers, 1 U.S. 443, sought to rationalize the competing strands of doctrine on the ground that an action may be "sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." Ex parte restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor immunity. The officer's action "is simply an illegal act upon the part of a state official in attempting *174 by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte 209 U. S., 59-160. The decision in Ex parte and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. " was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. If the state could not constitutionally authorize the act then was not acting by its authority." Orth, Judicial Power of the United States, 33. The doctrine we call Ex parte is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 See Chemerinsky, Federal Jurisdiction, at 393. A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court's assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such *175 an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "affec[t] the federal balance," United See (quoting State 473 U. S., 42); Our habitual caution makes sense for just the reason we mentioned in 491 U. S., at 0-1: it is "difficult to believe that Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest." C There is no question that by its own terms `s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman `s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply There is no adequate reason for its refusal. No clear statement of intent to displace the doctrine of Ex parte occurs in IGRA, and the Court is instead *176 constrained to rest its effort to skirt on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of 1 The Court cites 4 (18), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of The Court quotes from Chilicky for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante, 4. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "additional" remedy under Ex parte Ante, 3-76. Chilicky `s remoteness from the point of this case is, however, apparent from its facts. In Chilicky, Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of 403 U.S. for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward looking on the model, running against a federal official in his personal capacity, and requiring an *177 affirmative justification (as does). See 0 U.S. 471, The issue in Chilicky (and in Meyer ) is different from the issue here in every significant respect. is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began. does not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a government employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from Chilicky `s standards for imposing the burden to justify a supplementary scheme of tort law to the displacement of `s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit. 2 Next, the Court suggests that it may be justified in displacing because would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it. did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount *178 federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself). does no more and furnishes no authority for the Court's assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on for federal jurisdiction.[61] If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the doctrine). See 209 U. S., 67-1; U.S. 2, 9-690[62] And yet Congress has imposed *179 a number of restrictions upon the habeas remedy, see, e. g., 28 U.S. C. 2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., ; ; By suggesting that Ex parte provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under rather than 28 U.S. C. 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes.[63] This, of course, cannot be the law, and the plausible rationale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on as it has to regulate when is out of the jurisdictional picture. If does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer. 3 The Court's third strand of reasoning for displacing Ex parte is a supposed inference that Congress so intended. *180 Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude `s application. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind. IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liability under It provides that "[t]he United States district courts shall have jurisdiction over any cause of action arising from the failure of a State to enter into negotiations or to conduct such negotiations in good faith." 25 U.S. C. 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate.[64] The door is so obviously just as open to jurisdiction over an officer under as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that might well be the jurisdictional basis for enforcement action. But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of An order requiring a "State" to comply with federal *181 law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state-court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U.S. C. 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State." It may be that even the Court agrees, for it falls back to the position, see ante, 5, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (indeed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. 2 Kan. 559, makes that distinction abundantly clear. Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by excluding application of `s traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of *182 a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign immunity with federal law that is paramount under the Supremacy Clause? There are no plausible answers to these questions. D There is, finally, a response to the Court's rejection of that ought to go without saying. Our long-standing practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo 485 U.S. 5, (18) ). This practice alone (without any need for a clear statement to displace ) would be enough to require `s application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas ). Construing the statute to harmonize with as it readily does, would have saved an Act of Congress and rendered a discussion on constitutional grounds wholly unnecessary. This case should be decided on this basis alone. V Absent the application of Ex parte I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate immunity. Since the reasons for this position, as explained in Parts II—, tend to unsettle as well as support Union Gas, I should add a word about my reasons for continuing to accept `s holding as a matter of stare decisis. *183 The doctrine was erroneous, but it has not previously proven to be unworkable or to conflict with later doctrine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect. In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,[] they would not be modified without deliberately expressed intent. See 501 U. S., at The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision," United 404 U. S., at is particularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests,"[66] Hence, we *184 have required such a plain statement when Congress preempts the historic powers of the States, 0 imposes a condition on the grant of federal moneys, South (17), or seeks to regulate a State's ability to determine the qualifications of its own officials, When judging legislation passed under unmistakable Article I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement requirement is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., v. Texas Dept. of Highways & Public 483 U. S., ; State 473 U. S., -240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas ) we have never found the requirement to be met outside the context of laws passed under 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plainstatement rule is an adequate check on congressional overreaching, and that today's abandonment of that approach is wholly unwarranted. There is an even more fundamental "clear statement" principle, however, that the Court abandons today. John Marshall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases: *185 "The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed." 6 Wheat., at -380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article I would reverse the judgment of the Court of Appeals.

Justice Marshall

majority

Arkansas Louisiana Gas Co. v. Hall

https://www.courtlistener.com/opinion/110562/arkansas-louisiana-gas-co-v-hall/

https://www.courtlistener.com/api/rest/v3/clusters/110562/

1980-150

The "filed rate doctrine" prohibits a federally regulated seller of natural gas from charging rates higher than those filed with the Federal Energy Regulatory Commission pursuant to the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S. C. § 717 et seq. (1976 ed. and Supp. III). The question before us is whether that doctrine forbids a state court to calculate damages in a breach-of-contract action based on an assumption that had a higher rate been filed, the Commission would have approved it. I Respondents are producers of natural gas, and petitioner Arkansas Louisiana Gas Co. (Arkla) is a customer who buys their gas. In 1952, respondents[1] and Arkla entered into a contract under which respondents agreed to sell Arkla natural gas from the Sligo Gas Field in Louisiana. The contract contained a fixed price schedule and a "favored nations clause." The favored nations clause provided that if Arkla purchased Sligo Field natural gas from another party at a rate higher than the one it was paying respondents, then respondents would be entitled to a higher price for their sales to Arkla.[2]*574 In 1954, respondents filed with the Federal Power Commission (now the Federal Energy Regulatory Commission)[3] the contract and their rates and obtained from the Commission a certificate authorizing the sale of gas at the rates specified in the contract. In September 1961, Arkla purchased certain leases in the Sligo Field from the United States and began producing gas on its leasehold. In 1974, respondents filed this state-court action contending that Arkla's lease payments to the United States had triggered the favored nations clause. Because Arkla had not increased its payments to respondents as required by the clause, respondents sought as damages an amount equal to the difference between the price they actually were paid in the intervening years and the price they would have been paid had the favored nations clause gone into effect. In its answer, Arkla denied that its lease payments were purchases of gas within the meaning of the favored nations clause. Arkla subsequently amended its answer to allege in addition that the Commission had primary jurisdiction over the issues in contention. Arkla also sought a Commission ruling that its lease payments had not triggered the favored nations clause. The Commission did not act immediately, and the case proceeded to trial. The state trial court found that Arkla's payments had triggered the favored nations clause, but nonetheless held that the filed rate doctrine precluded *575 an award of damages for the period prior to 1972. The intermediate appellate court affirmed, 359 So. 2d 255 (1978), and both parties sought leave to appeal. The Supreme Court of Louisiana denied Arkla's petition for appeal, 362 So. 2d 1120 (1978), and Arkla sought certiorari in this Court on the question whether the interpretation of the favored nations clause should have been referred to the Commission. We denied the petition. 444 U.S. 878 (1979). While Arkla's petition for certiorari was pending, the Supreme Court of Louisiana granted respondents' petition for review and reversed the intermediate court on the measure of damages. 368 So. 2d 984 (1979). The court held that respondents were entitled to damages for the period between 1961 and 1972 notwithstanding the filed rate doctrine. The court reasoned that Arkla's failure to inform respondents of the lease payments to the United States had prevented respondents from filing rate increases with the Commission, and that had respondents filed rate increases with the Commission, the rate increases would have been approved. Id., at 991. After the decision by the Supreme Court of Louisiana, the Commission in May 1979 finally declined to exercise primary jurisdiction over the case, holding that the interpretation of the favored nations clause raised no matters on which the Commission had particular expertise. Arkansas Louisiana Gas Co. v. Hall, 7 FERC ¶ 61,175, p. 61,321.[4] The Commission *576 did, however, state: "It is our opinion that the Louisiana Supreme Court's award of damages for the 1961-1972 period violates the filed rate doctrine." Id., at 61,325, n. 18.[5] Under that doctrine, no regulated seller is legally entitled to collect a rate in excess of the one filed with the Commission for a particular period. See infra, at 576-579. We granted Arkla's subsequent petition for certiorari challenging the judgment of the Louisiana Supreme Court. 449 U.S. 1109 (1981).[6] II Sections 4 (c) and 4 (d) of the Natural Gas Act, 52 Stat. 822-823, 15 U.S. C. §§ 717c (c) and 717c (d), require sellers of *577 natural gas in interstate commerce to file their rates with the Commission. Under § 4 (a) of the Act, 52 Stat. 822, 15 U.S. C. § 717c (a), the rates that a regulated gas company files with the Commission for sale and transportation of natural gas are lawful only if they are "just and reasonable." No court may substitute its own judgment on reasonableness for the judgment of the Commission. The authority to decide whether the rates are reasonable is vested by § 4 of the Act solely in the Commission, see FPC v. Hope Natural Gas Co., 320 U.S. 591, 611 (1944), and "the right to a reasonable rate is the right to the rate which the Commission files or fixes," Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251 (1951).[7] Except when the Commission permits a waiver, no regulated seller of natural gas may collect a rate other than the one filed with the Commission. § 4 (d), 52 Stat. 823, 15 U.S. C. § 717c (d). These straightforward principles underlie the "filed rate doctrine," which forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority. See, e. g., T. I. M. E. Inc. v. United States, 359 U.S. 464, 473 (1959). The filed rate doctrine has its origins in this Court's cases interpreting the Interstate Commerce Act, see, e. g., Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520-521 (1939); Pennsylvania R. Co. v. International Coal Co., 230 U.S. 184, 196-197 (1913), and has been extended across the spectrum of regulated utilities. "The considerations underlying the doctrine . . . are preservation of the agency's primary jurisdiction *578 over reasonableness of rates and the need to insure that regulated companies charge only those rates of which the agency has been made cognizant." City of Cleveland v. FPC, 174 U. S. App. D. C. 1, 10, 525 F.2d 845, 854 (1976). See City of Piqua v. FERC, 198 U. S. App. D. C. 8, 13, 610 F.2d 950, 955 (1979). Not only do the courts lack authority to impose a different rate than the one approved by the Commission, but the Commission itself has no power to alter a rate retroactively.[8] When the Commission finds a rate unreasonable, it "shall determine the just and reasonable rate . . . to be thereafter observed and in force." § 5 (a), 52 Stat. 823, 15 U.S. C. § 717d (a) (emphasis added). See, e. g., FPC v. Tennessee Gas Co., 371 U.S. 145, 152-153 (1962); FPC v. Sierra Pacific Power Co., 350 U.S. 348, 353 (1956). This rule bars "the Commission's retroactive substitution of an unreasonably high or low rate with a just and reasonable rate." City of Piqua v. FERC, supra, at 12, 610 F.2d, at 954. In sum, the Act bars a regulated seller of natural gas from collecting a rate other than the one filed with the Commission and prevents the Commission itself from imposing a rate increase for gas already sold. Petitioner Arkla and the Commission as amicus curiae both argue that these rules taken in tandem are sufficient to dispose of this case. No matter how the ruling of the Louisiana Supreme Court may be characterized, they argue, it amounts to nothing less than the award of a retroactive rate increase based on speculation *579 about what the Commission might have done had it been faced with the facts of this case. This, they contend, is precisely what the filed rate doctrine forbids. We agree. It would undermine the congressional scheme of uniform rate regulation to allow a state court to award as damages a rate never filed with the Commission and thus never found to be reasonable within the meaning of the Act. Following that course would permit state courts to grant regulated sellers greater relief than they could obtain from the Commission itself. In asserting that the filed rate doctrine has no application here, respondents contend first that the state court has done no more than determine the damages they have suffered as a result of Arkla's breach of the contract.[9] No federal interests, they maintain, are affected by the state court's action. But the Commission itself has found that permitting this damages award could have an "unsettling effect . . . on other gas purchase transactions" and would have a "potential for disruption of natural gas markets . . . ." Arkansas Louisiana Gas Co. v. Hall, 13 FERC ¶ 61,100, p. 61,213 (1980).[10] *580 Even were the Commission not on record in this case, the mere fact that respondents brought this suit under state law would not rescue it, for when Congress has established an exclusive form of regulation, "there can be no divided authority over interstate commerce." Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408 (1925). Congress here has granted exclusive authority over rate regulation to the Commission. In so doing, Congress withheld the authority to grant retroactive rate increases or to permit collection of a rate other than the one on file. It would surely be inconsistent with this congressional purpose to permit a state court to do through a breach-of-contract action what the Commission itself may not do. We rejected an analogous claim earlier this Term in Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981). There, a shipper of goods by rail sought to assert a state common-law tort action for damages stemming from a regulated rail carrier's decision to cease service on a rail line. We held unanimously that because the Interstate Commerce Commission had, in approving the cessation, ruled on all issues that the shipper sought to raise in the state-court suit, the common-law action was pre-empted. In reaching our conclusion, we explained that "[a] system under which each State could, through its courts, impose on rail-road carriers its own version of reasonable service requirements could hardly be more at odds with the uniformity contemplated by Congress in enacting the Interstate Commerce Act." Id., at 326. To hold otherwise, we said, would merely approve "an attempt by a disappointed shipper to gain from the Iowa courts the relief it was denied by the Commission." Id., at 324. In the case before us, the Louisiana Supreme Court's award of damages to respondents was necessarily supported by an assumption that the higher rate respondents might have filed with the Commission was reasonable. Otherwise, there would have been no basis for that court's conclusion, 368 *581 So. 2d, at 991, that the Commission would have approved the rate. But under the filed rate doctrine, the Commission alone is empowered to make that judgment, and until it has done so, no rate other than the one on file may be charged. And far from approving the rate here in issue, the Commission has expressly declined to speculate on what its predecessor might have done.[11] The court below, like the state *582 court in Kalo Brick, has consequently usurped a function that Congress has assigned to a federal regulatory body. This the Supremacy Clause will not permit. Respondents' theory of the case would give inordinate importance to the role of contracts between buyers and sellers in the federal scheme for regulating the sale of natural gas. Of course, as we have held on more than one occasion, nothing in the Act forbids parties to set their rates by contract. E. g., Permian Basin Area Rate Cases, 390 U.S. 747, 820-822 (1968); United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 338-340 (1956). But those cases stand only for the proposition that the Commission itself lacks affirmative authority, absent extraordinary circumstances, to "abrogate existing contractual arrangements." Permian Basin Area Rate Cases, supra, at 820. See United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, at 338-339. That rule does not affect the supremacy of the Act itself, and under the filed rate doctrine, when there is a conflict between the filed rate and the contract rate, the filed rate controls. See, e. g., Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 97 (1915); Texas & Pacific R. Co. v. Mugg, 202 U.S. 242, 245 (1906). "This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress . . . ." Louisville & Nashville R. Co. v. Maxwell, supra, at 97. Moreover, to permit parties to vary by private agreement the rates filed with the Commission would undercut the clear purpose of the congressional scheme: granting the Commission an opportunity in every case to judge the reasonableness of the rate. Cf. United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, at 338-339.[12] *583 Respondents also appeal to what they say are equitable considerations. The filed rate doctrine and the Supremacy Clause, we are told, should not bar recovery when the defendant's misconduct prevented filing of a higher rate. We do not find this argument compelling. The court below did not find that Arkla intentionally failed to inform respondents of its lease payments to the United States in an effort to defraud them. Consequently, we are not faced with affirmative misconduct, and we need not consider the application of the filed rate doctrine in such a case.[13] The courts *584 below found that Arkla has done no more than commit a simple breach of its contract. But when a court is called upon to decide whether state and federal laws are in conflict, the fact that the state law has been violated does not affect the analysis. Every pre-emption case involves a conflict between a claim of right under federal law and a claim of right under state law. A finding that federal law provides a shield for the challenged conduct will almost always leave the state-law violation unredressed. Thus in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the mere fact that a group of unions violated state law through their peaceful picketing did not permit enforcement of that law when it would conflict with the federal regulatory scheme. That the state-court suit was one for damages rather than for the type of relief available from the National Labor Relations Board weighed against pre-emption, not in favor of it. "[S]ince remedies form an ingredient of any integrated scheme of regulation," Justice Frankfurter wrote for the Court, "to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict." Id., at 247. The same principle applies here. Permitting the state court to award what amounts to a retroactive right to collect a rate in excess of the filed rate "only accentuates the danger of conflict." No appeal to equitable principles can justify this usurpation of federal authority. III We hold that the filed rate doctrine prohibits the award of damages for Arkla's breach during the period that respondents were subject to Commission jurisdiction.[14] In all respects other than those relating to damages, the judgment of the Supreme Court of Louisiana is affirmed. With respect *585 to its calculation of damages, the judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

The "filed rate doctrine" prohibits a federally regulated seller of natural gas from charging rates higher than those filed with the Federal Energy Regulatory Commission pursuant to the Natural Gas Act, as amended, 15 U.S. C. 717 et seq. ( ed. and Supp. III). The question before us is whether that doctrine forbids a state court to calculate damages in a breach-of-contract action based on an assumption that had a higher rate been filed, the Commission would have approved it. I Respondents are producers of natural gas, and petitioner Arkansas Louisiana Gas Co. (Arkla) is a customer who buys their gas. In 1952, respondents[1] and Arkla entered into a contract under which respondents agreed to sell Arkla natural gas from the Sligo Gas Field in Louisiana. The contract contained a fixed price schedule and a "favored nations clause." The favored nations clause provided that if Arkla purchased Sligo Field natural gas from another party at a rate higher than the one it was paying respondents, then respondents would be entitled to a higher price for their sales to Arkla.[2]*574 In 1954, respondents filed with the Federal Power Commission (now the Federal Energy Regulatory Commission)[3] the contract and their rates and obtained from the Commission a certificate authorizing the sale of gas at the rates specified in the contract. In September 1961, Arkla purchased certain leases in the Sligo Field from the United States and began producing gas on its leasehold. In 14, respondents filed this state-court action contending that Arkla's lease payments to the United States had triggered the favored nations clause. Because Arkla had not increased its payments to respondents as required by the clause, respondents sought as damages an amount equal to the difference between the price they actually were paid in the intervening years and the price they would have been paid had the favored nations clause gone into effect. In its answer, Arkla denied that its lease payments were purchases of gas within the meaning of the favored nations clause. Arkla subsequently amended its answer to allege in addition that the Commission had primary jurisdiction over the issues in contention. Arkla also sought a Commission ruling that its lease payments had not triggered the favored nations clause. The Commission did not act immediately, and the case proceeded to trial. The state trial court found that Arkla's payments had triggered the favored nations clause, but nonetheless held that the filed rate doctrine precluded *575 an award of damages for the period prior to 12. The intermediate appellate court affirmed, and both parties sought leave to appeal. The Supreme Court of Louisiana denied Arkla's petition for appeal, and Arkla sought certiorari in this Court on the question whether the interpretation of the favored nations clause should have been referred to the Commission. We denied the petition. While Arkla's petition for certiorari was pending, the Supreme Court of Louisiana granted respondents' petition for review and reversed the intermediate court on the measure of damages. The court held that respondents were entitled to damages for the period between 1961 and 12 notwithstanding the filed rate doctrine. The court reasoned that Arkla's failure to inform respondents of the lease payments to the United States had prevented respondents from filing rate increases with the Commission, and that had respondents filed rate increases with the Commission, the rate increases would have been approved. After the decision by the Supreme Court of Louisiana, the Commission in May finally declined to exercise primary jurisdiction over the case, holding that the interpretation of the favored nations clause raised no matters on which the Commission had particular expertise. Arkansas Louisiana Gas[4] The Commission *576 did, however, state: "It is our opinion that the Louisiana Supreme Court's award of damages for the 1961-12 period violates the filed rate doctrine."[5] Under that doctrine, no regulated seller is legally entitled to collect a rate in excess of the one filed with the Commission for a particular period. See infra, at 576-579. We granted Arkla's subsequent petition for certiorari challenging the judgment of the Louisiana Supreme Court.[6] II Sections 4 (c) and 4 (d) of the Natural Gas Act, -823, 15 U.S. C. 717c (c) and 717c (d), require sellers of *577 natural gas in interstate commerce to file their rates with the Commission. Under 4 (a) of the Act, 15 U.S. C. 717c (a), the rates that a regulated gas company files with the Commission for sale and transportation of natural gas are lawful only if they are "just and reasonable." No court may substitute its own judgment on reasonableness for the judgment of the Commission. The authority to decide whether the rates are reasonable is vested by 4 of the Act solely in the Commission, see and "the right to a reasonable rate is the right to the rate which the Commission files or fixes," Montana-Dakota Utilities[7] Except when the Commission permits a waiver, no regulated seller of natural gas may collect a rate other than the one filed with the Commission. 4 (d), 15 U.S. C. 717c (d). These straightforward principles underlie the "filed rate doctrine," which forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority. See, e. g., T. I. M. E. The filed rate doctrine has its origins in this Court's cases interpreting the Interstate Commerce Act, see, e. g., ; Pennsylvania R. and has been extended across the spectrum of regulated utilities. "The considerations underlying the doctrine are preservation of the agency's primary jurisdiction *578 over reasonableness of rates and the need to insure that regulated companies charge only those rates of which the agency has been made cognizant." City of See City of Not only do the courts lack authority to impose a different rate than the one approved by the Commission, but the Commission itself has no power to alter a rate retroactively.[8] When the Commission finds a rate unreasonable, it "shall determine the just and reasonable rate to be thereafter observed and in force." 5 (a), 15 U.S. C. 717d (a) (emphasis added). See, e. g., ; This rule bars "the Commission's retroactive substitution of an unreasonably high or low rate with a just and reasonable rate." City of Piqua v. In sum, the Act bars a regulated seller of natural gas from collecting a rate other than the one filed with the Commission and prevents the Commission itself from imposing a rate increase for gas already sold. Petitioner Arkla and the Commission as amicus curiae both argue that these rules taken in tandem are sufficient to dispose of this case. No matter how the ruling of the Louisiana Supreme Court may be characterized, they argue, it amounts to nothing less than the award of a retroactive rate increase based on speculation *579 about what the Commission might have done had it been faced with the facts of this case. This, they contend, is precisely what the filed rate doctrine forbids. We agree. It would undermine the congressional scheme of uniform rate regulation to allow a state court to award as damages a rate never filed with the Commission and thus never found to be reasonable within the meaning of the Act. Following that course would permit state courts to grant regulated sellers greater relief than they could obtain from the Commission itself. In asserting that the filed rate doctrine has no application here, respondents contend first that the state court has done no more than determine the damages they have suffered as a result of Arkla's breach of the contract.[9] No federal interests, they maintain, are affected by the state court's action. But the Commission itself has found that permitting this damages award could have an "unsettling effect on other gas purchase transactions" and would have a "potential for disruption of natural gas markets" Arkansas Louisiana Gas 13 ¶ 61,100,[10] *580 Even were the Commission not on record in this case, the mere fact that respondents brought this suit under state law would not rescue it, for when Congress has established an exclusive form of regulation, "there can be no divided authority over interstate commerce." Missouri Pacific R. Congress here has granted exclusive authority over rate regulation to the Commission. In so doing, Congress withheld the authority to grant retroactive rate increases or to permit collection of a rate other than the one on file. It would surely be inconsistent with this congressional purpose to permit a state court to do through a breach-of-contract action what the Commission itself may not do. We rejected an analogous claim earlier this Term in Chicago & North Western Transp. There, a shipper of goods by rail sought to assert a state common-law tort action for damages stemming from a regulated rail carrier's decision to cease service on a rail line. We held unanimously that because the Interstate Commerce Commission had, in approving the cessation, ruled on all issues that the shipper sought to raise in the state-court suit, the common-law action was pre-empted. In reaching our conclusion, we explained that "[a] system under which each State could, through its courts, impose on rail-road carriers its own version of reasonable service requirements could hardly be more at odds with the uniformity contemplated by Congress in enacting the Interstate Commerce Act." To hold otherwise, we said, would merely approve "an attempt by a disappointed shipper to gain from the Iowa courts the relief it was denied by the Commission." In the case before us, the Louisiana Supreme Court's award of damages to respondents was necessarily supported by an assumption that the higher rate respondents might have filed with the Commission was reasonable. Otherwise, there would have been no basis for that court's conclusion, 368 *581 So. 2d, that the Commission would have approved the rate. But under the filed rate doctrine, the Commission alone is empowered to make that judgment, and until it has done so, no rate other than the one on file may be charged. And far from approving the rate here in issue, the Commission has expressly declined to speculate on what its predecessor might have done.[11] The court below, like the state *582 court in Kalo Brick, has consequently usurped a function that Congress has assigned to a federal regulatory body. This the Supremacy Clause will not permit. Respondents' theory of the case would give inordinate importance to the role of contracts between buyers and sellers in the federal scheme for regulating the sale of natural gas. Of course, as we have held on more than one occasion, nothing in the Act forbids parties to set their rates by contract. E. g., Permian Basin Area Rate ; United Gas Pipe Line But those cases stand only for the proposition that the Commission itself lacks affirmative authority, absent extraordinary circumstances, to "abrogate existing contractual arrangements." Permian Basin Area Rate See United Gas Pipe Line That rule does not affect the supremacy of the Act itself, and under the filed rate doctrine, when there is a conflict between the filed rate and the contract rate, the filed rate controls. See, e. g., Louisville & Nashville R. ; Texas & Pacific R. "This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress" Louisville & Nashville R. at Moreover, to permit parties to vary by private agreement the rates filed with the Commission would undercut the clear purpose of the congressional scheme: granting the Commission an opportunity in every case to judge the reasonableness of the rate. Cf. United Gas Pipe Line[] *583 Respondents also appeal to what they say are equitable considerations. The filed rate doctrine and the Supremacy Clause, we are told, should not bar recovery when the defendant's misconduct prevented filing of a higher rate. We do not find this argument compelling. The court below did not find that Arkla intentionally failed to inform respondents of its lease payments to the United States in an effort to defraud them. Consequently, we are not faced with affirmative misconduct, and we need not consider the application of the filed rate doctrine in such a case.[13] The courts *584 below found that Arkla has done no more than commit a simple breach of its contract. But when a court is called upon to decide whether state and federal laws are in conflict, the fact that the state law has been violated does not affect the analysis. Every pre-emption case involves a conflict between a claim of right under federal law and a claim of right under state law. A finding that federal law provides a shield for the challenged conduct will almost always leave the state-law violation unredressed. Thus in San Diego Building Trades the mere fact that a group of unions violated state law through their peaceful picketing did not permit enforcement of that law when it would conflict with the federal regulatory scheme. That the state-court suit was one for damages rather than for the type of relief available from the National Labor Relations Board weighed against pre-emption, not in favor of it. "[S]ince remedies form an ingredient of any integrated scheme of regulation," Justice Frankfurter wrote for the Court, "to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict." The same principle applies here. Permitting the state court to award what amounts to a retroactive right to collect a rate in excess of the filed rate "only accentuates the danger of conflict." No appeal to equitable principles can justify this usurpation of federal authority. III We hold that the filed rate doctrine prohibits the award of damages for Arkla's breach during the period that respondents were subject to Commission jurisdiction.[14] In all respects other than those relating to damages, the judgment of the Supreme Court of Louisiana is affirmed. With respect *585 to its calculation of damages, the judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

Justice Scalia

concurring

Perez v. Mortgage Bankers Assn.

https://www.courtlistener.com/opinion/2784695/perez-v-mortgage-bankers-assn/

https://www.courtlistener.com/api/rest/v3/clusters/2784695/

2014-022

I agree with the Court’s decision, and all of its reasoning demonstrating the incompatibility of the D. C. Circuit’s Paralyzed Veterans holding with the Administrative Pro- cedure Act. Paralyzed Veterans of Am. v. D. C. Arena L.P., 117 F.3d 579 (CADC 1997). I do not agree, however, with the Court’s portrayal of the result it produces as a vindica- tion of the balance Congress struck when it “weighed the costs and benefits of placing more rigorous . . . restrictions on the issuance of interpretive rules.” Ante, at 9. That depiction is accurate enough if one looks at this case in isolation. Considered alongside our law of deference to administrative determinations, however, today’s decision produces a balance between power and procedure quite different from the one Congress chose when it enacted the APA. “The [APA] was framed against a background of rapid expansion of the administrative process as a check upon 2 PEREZ v. MORTGAGE BANKERS ASSN. SCALIA, J., concurring in judgment administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” United States v. Morton Salt Co., 338 U.S. 632, 644 (1950). The Act guards against excesses in rule- making by requiring notice and comment. Before an agency makes a rule, it normally must notify the public of the proposal, invite them to comment on its shortcomings, consider and respond to their arguments, and explain its final decision in a statement of the rule’s basis and pur- pose. 5 U.S. C. §553(b)–(c); ante, at 2. The APA exempts interpretive rules from these re- quirements. §553(b)(A). But this concession to agencies was meant to be more modest in its effects than it is today. For despite exempting interpretive rules from notice and comment, the Act provides that “the reviewing court shall . . . interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” §706 (emphasis added). The Act thus contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations. In such a regime, the exemption for interpretive rules does not add much to agency power. An agency may use interpretive rules to advise the public by explaining its interpretation of the law. But an agency may not use interpretive rules to bind the public by making law, because it remains the responsibility of the court to decide whether the law means what the agency says it means. Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ inter- pretations of statutes and regulations. Never mentioning §706’s directive that the “reviewing court . . . interpret . . . statutory provisions,” we have held that agencies may authoritatively resolve ambiguities in statutes. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–843 (1984). And never mentioning §706’s directive that the “reviewing court . . . determine Cite as: 575 U. S. ____ (2015) 3 SCALIA, J., concurring in judgment the meaning or applicability of the terms of an agency action,” we have—relying on a case decided before the APA, Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)—held that agencies may authoritatively resolve ambiguities in regulations. Auer v. Robbins, 519 U.S. 452, 461 (1997). By supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of inter- pretive rules’ exemption from notice-and-comment rule- making. Agencies may now use these rules not just to advise the public, but also to bind them. After all, if an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded simi- lar deference. Interpretive rules that command deference do have the force of law. The Court’s reasons for resisting this obvious point would not withstand a gentle breeze. Even when an agen- cy’s interpretation gets deference, the Court argues, “it is the court that ultimately decides whether [the text] means what the agency says.” Ante, at 10–11, n. 4. That is not quite so. So long as the agency does not stray beyond the ambiguity in the text being interpreted, deference compels the reviewing court to “decide” that the text means what the agency says. The Court continues that “deference is not an inexorable command in all cases,” because (for example) it does not apply to plainly erroneous interpreta- tions. Ibid. True, but beside the point. Saying all inter- pretive rules lack force of law because plainly erroneous interpretations do not bind courts is like saying all sub- stantive rules lack force of law because arbitrary and capricious rules do not bind courts. Of course an interpre- tive rule must meet certain conditions before it gets defer- ence—the interpretation must, for instance, be reason- able—but once it does so it is every bit as binding as a substantive rule. So the point stands: By deferring to 4 PEREZ v. MORTGAGE BANKERS ASSN. SCALIA, J., concurring in judgment interpretive rules, we have allowed agencies to make binding rules unhampered by notice-and-comment procedures. The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setting forth agency interpretation of statutes. But an agency’s interpretation of its own regulations is an- other matter. By giving that category of interpretive rules Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment. The APA does not remotely contemplate this regime. Still and all, what are we to do about the problem? The Paralyzed Veterans doctrine is a courageous (indeed, brazen) attempt to limit the mischief by requiring an interpretive rule to go through notice and comment if it revises an earlier definitive interpretation of a regulation. That solution is unlawful for the reasons set forth in the Court’s opinion: It contradicts the APA’s unqualified ex- emption of interpretive rules from notice-and-comment rulemaking. But I think there is another solution—one unavailable to the D. C. Circuit since it involves the overruling of one this Court’s decisions (that being even a greater fault than merely ignoring the APA). As I have described elsewhere, the rule of Chevron, if it did not comport with the APA, at least was in conformity with the long history of judicial review of executive action, where “[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.” Cite as: 575 U. S. ____ (2015) 5 SCALIA, J., concurring in judgment United States v. Mead Corp., 533 U.S. 218, 243 (2001) (SCALIA, J., dissenting). I am unaware of any such history justifying deference to agency interpretations of its own regulations. And there are weighty reasons to deny a lawgiver the power to write ambiguous laws and then be the judge of what the ambiguity means. See Decker v. Northwest Environmental Defense Center, 568 U. S. ___, ___–___ (2013) (SCALIA, J., concurring in part and dissent- ing in part) (slip op., at 1–7). I would therefore restore the balance originally struck by the APA with respect to an agency’s interpretation of its own regulations, not by rewriting the Act in order to make up for Auer, but by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct. Cite as: 575 U. S. ____ (2015) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–1041 and 13–1052 _________________ THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION ET AL. JEROME NICKOLS, ET AL., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [March 9, 2015] JUSTICE THOMAS, concurring in the judgment. I concur in the Court’s holding that the doctrine first announced in Paralyzed Veterans of America v. D. C. Arena L. P., 117 F.3d 579 (CADC 1997), is inconsistent with the Administrative Procedure Act (APA), 5 U.S. C. §551 et seq., and must be rejected. An agency’s substantial revision of its interpretation of a regulation does not amount to an “amendment” of the regulation as that word is used in the statute. I write separately because these cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations. That line of precedents, beginning with Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), requires judges to defer to agency interpretations of regulations, thus, as happened in these cases, giving legal effect to the interpretations rather than the regulations themselves. Because this doctrine effects a transfer of the judicial power to an exec- 2 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment utive agency, it raises constitutional concerns. This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent. I The doctrine of deference to an agency’s interpretation of regulations is usually traced back to this Court’s deci- sion in Seminole Rock, supra, which involved the interpre- tation of a war-time price control regulation, id., at 411. Along with a general price freeze, the Administrator of the Office of Price Administration had promulgated special- ized regulations governing the maximum price for differ- ent commodities. Id., at 413. When the Administrator brought an enforcement action against a manufacturer of crushed stone, the manufacturer challenged the Adminis- trator’s interpretation of his regulations. The lower courts agreed with the manufacturer’s inter- pretation, id., at 412–413, but this Court reversed. In setting out the approach it would apply to the case, the Court announced—without citation or explanation—that an administrative interpretation of an ambiguous regula- tion was entitled to “controlling weight”: “Since this involves an interpretation of an adminis- trative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpreta- tion, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Id., at 413–414. Cite as: 575 U. S. ____ (2015) 3 THOMAS, J., concurring in judgment The Court then concluded that the rule “clearly” favored the Administrator’s interpretation, rendering this discus- sion dictum. Id., at 415–417. From this unsupported rule developed a doctrine of deference that has taken on a life of its own.1 It has been broadly applied to regulations issued by agencies across a broad spectrum of subjects. See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 358–359 (1989) (forests); Ehlert v. United States, 402 U.S. 99, 104–105 (1971) (Selective Service); INS v. Stanisic, 395 U.S. 62, 72 (1969) (deportation); Udall v. Tallman, 380 U.S. 1, 16–17 (1965) (oil and gas leases). It has even been applied to an agency’s interpretation of another agency’s regulations. See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696– 699 (1991). And, it has been applied to an agency inter- pretation that was inconsistent with a previous interpre- tation of the same regulation. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170–171 (2007). It has been applied to formal and informal interpretations alike, including those taken during litigation. See Auer v. Rob- bins, 519 U.S. 452, 462 (1997). Its reasoning has also been extended outside the context of traditional agency regulations into the realm of criminal sentencing. See Stinson v. United States, 508 U.S. 36, 44–45 (1993) (con- cluding that the Sentencing Commission’s commentary on its Guidelines is analogous to an agency interpretation of its own regulations, entitled to Seminole Rock deference). The Court has even applied the doctrine to an agency interpretation of a regulation cast in such vague aspira- tional terms as to have no substantive content. See —————— 1 Although the Court has appeared to treat our agency deference regimes as precedents entitled to stare decisis effect, some scholars have noted that they might instead be classified as interpretive tools. See, e.g., C. Nelson, Statutory Interpretation 701 (2011). Such tools might not be entitled to such effect. Because resolution of that issue is not necessary to my conclusion here, I leave it for another day. 4 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512–513 (1994); see also id., at 518 (THOMAS, J., dissenting). On this steady march toward deference, the Court only once expressly declined to apply Seminole Rock deference on the ground that the agency’s interpretation was plainly erroneous.2 In that case, we were faced with the predict- able consequence of this line of precedents: An agency sought deference to an opinion letter that interpreted a permissive regulation as mandatory. See Christensen v. Harris County, 529 U.S. 576, 588 (2000). We rejected that request for deference as an effort, “under the guise of interpreting a regulation, to create de facto a new regula- tion.” Ibid. This narrow limit on the broad deference given the agency interpretations, though sound, could not save a doctrine that was constitutionally infirm from the start. Seminole Rock was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns. —————— 2 The Court has also twice expressly found Seminole Rock deference inapplicable for other reasons. Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012) (slip op., at 13–14) (“[W]here, as here, an agency’s announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute. . . . [W]hatever the general merits of Auer deference, it is unwarranted here”); Gonzales v. Oregon, 546 U.S. 243, 256–257 (2006) (“In our view Auer and the standard of deference it accords to an agency are inapplicable here. . . . The language the Interpretive Rule addresses comes from Congress, not the Attorney General, and the near equivalence of the statute and regulation belies the Government’s argument for Auer deference”). Occasionally, Members of this Court have argued in separate writ- ings that the Court failed appropriately to apply Seminole Rock defer- ence, but in none of those cases did the majority opinions of the Court expressly refuse to do so. See Ballard v. Commissioner, 544 U.S. 40 (2005); Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998); Director, Office of Workers’ Compensation Programs v. Green- wich Collieries, 512 U.S. 267 (1994); United States v. Swank, 451 U.S. 571 (1981); Peters v. Hobby, 349 U.S. 331 (1955). Cite as: 575 U. S. ____ (2015) 5 THOMAS, J., concurring in judgment II We have not always been vigilant about protecting the structure of our Constitution. Although this Court has repeatedly invoked the “separation of powers” and “the constitutional system of checks and balances” as core principles of our constitutional design, essential to the protection of individual liberty, see, e.g., Stern v. Marshall, 564 U. S. ___, ___–___ (2011) (slip op., at 16–17) (internal quotation marks omitted), it has also endorsed a “more pragmatic, flexible approach” to that design when it has seemed more convenient to permit the powers to be mixed, see, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977). As the history shows, that approach runs the risk of compromising our constitutional structure. A The Constitution’s particular blend of separated powers and checks and balances was informed by centuries of political thought and experiences. See M. Vile, Constitu- tionalism and the Separation of Powers 38, 168–169 (2d ed. 1998) (Vile). Though the theories of the separation of powers and checks and balances have roots in the ancient world, events of the 17th and 18th centuries played a crucial role in their development and informed the men who crafted and ratified the Constitution. Over a century before our War of Independence, the English Civil War catapulted the theory of the separation of powers to prominence. As political theorists of the day witnessed the conflict between the King and Parliament, and the dangers of tyrannical government posed by each, they began to call for a clear division of authority between the two. Id., at 44–45, 48–49. A 1648 work titled The Royalist’s Defence offered perhaps the first extended account of the theory of the separation of powers: “[W]hilst the Supreamacy, the Power to Judge the Law, 6 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment and Authority to make new Lawes, are kept in severall hands, the known Law is preserved, but united, it is van- ished, instantly thereupon, and Arbytrary and Tyrannicall power is introduced.” The Royalist’s Defence 80 (1648) (italics in original). John Locke and Baron de Montesquieu endorsed and expanded on this concept. See Vile 63–64. They agreed with the general theory set forth in The Royalist’s De- fence, emphasizing the need for a separation of powers to protect individual liberty. J. Locke, Second Treatise of Civil Government §§143–144, p. 72 (J. Gough ed. 1947); Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). But they also advo- cated a system of checks and balances to reinforce that separation. Vile 72–73, 102. For instance, they agreed that the executive should have the power to assemble and dismiss the legislature and to consent to laws passed by it. See Locke, supra, §§151, 156, at 75, 77–78; Montesquieu, Spirit of the Laws, at 157, 159. Montesquieu warned that “power should be a check to power” lest the legislature “arrogate to itself what authority it pleased . . . [and] soon destroy all the other powers.” Id., at 150, 157. The experience of the States during the period between the War of Independence and the ratification of the Con- stitution confirmed the wisdom of combining these theo- ries. Although many State Constitutions of the time included language unequivocally endorsing the separation of powers, they did not secure that separation with checks and balances, Vile 147, and actively placed traditional executive and judicial functions in the legislature, G. Wood, The Creation of the American Republic 1776– 1787, pp. 155–156 (1969). Under these arrangements, state legislatures arrogated power to themselves and began to confiscate property, approve the printing of paper money, and suspend the ordinary means for the recovery Cite as: 575 U. S. ____ (2015) 7 THOMAS, J., concurring in judgment of debts. Id., at 403–409.3 When the Framers met for the Constitutional Conven- tion, they understood the need for greater checks and balances to reinforce the separation of powers. As Madi- son remarked, “experience has taught us a distrust” of the separation of powers alone as “a sufficient security to each [branch] [against] encroachments of the others.” 2 Re- cords of the Federal Convention of 1787, p. 77 (M. Farrand rev. 1966). “[I]t is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper.” Ibid. The Framers thus separated the three main powers of Government—legislative, executive, and judi- cial—into the three branches created by Articles I, II, and III. But they also created checks and balances to reinforce that separation. For example, they gave Congress specific enumerated powers to enact legislation, Art. I, §8, but gave the President the power to veto that legislation, subject to congressional override by a supermajority vote, Art. I, §7, cls. 2, 3. They gave the President the power to appoint principal officers of the United States, but gave the Senate the power to give advice and consent to those appointments. Art. II, §2, cl. 2. They gave the House and Senate the power to agree to adjourn for more than three days, Art. I, §5, cl. 4, but gave the President the power, “in Case of Disagreement between them,” to adjourn the Congress “to such Time as he shall think proper.” Art. II, §3, cl. 3. During the ratification debates, Madison argued that this structure represented “the great security” for liberty in the Constitution. The Federalist No. 51, p. 321 —————— 3 The practices of the time can perhaps best be summarized by the following commentary from a contemporaneous magazine: “[S]o many legal infractions of sacred right—so many public invasions of private property—so many wanton abuses of legislative powers!” Giles Hickory (Noah Webster), Government, The American Magazine, Mar. 1788, p. 206. 8 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment (C. Rossiter ed. 1961) (J. Madison). To the Framers, the separation of powers and checks and balances were more than just theories. They were practical and real protections for individual liberty in the new Constitution. See Mistretta v. United States, 488 U.S. 361, 426 (1989) (SCALIA, J., dissenting) (“[The Con- stitution] is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling [of governmental powers] was, in the generality of things, acceptable, and set forth their conclusions in the docu- ment”). The Judiciary—no less than the other two branches—has an obligation to guard against deviations from those principles. The Seminole Rock line of prece- dent is one such deviation. B Seminole Rock raises two related constitutional con- cerns. It represents a transfer of judicial power to the Executive Branch, and it amounts to an erosion of the judicial obligation to serve as a “check” on the political branches. 1 When a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the “judicial Power of the United States.” Art. III, §1. For the reasons I explain in this section, the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws. Those who ratified the Constitution knew that legal texts would often contain ambiguities. See generally Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 53 Stan. L. Rev. 1, 20–21, and Cite as: 575 U. S. ____ (2015) 9 THOMAS, J., concurring in judgment n. 66 (2000); Nelson, Originalism and Interpretive Con- ventions, 70 U. Chi. L. Rev. 519, 525–526 (2003). As James Madison explained, “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal . . . .” The Federalist No. 37, at 229. The judicial power was understood to include the power to resolve these ambiguities over time. See ibid. Alexan- der Hamilton lauded this power, arguing that “[t]he inter- pretation of the laws is the proper and peculiar province of the courts.” Id., No. 78, at 467. It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding. Vile 360. Although the Federalists and Anti-Federalists engaged in a public debate about this interpretive power, that debate centered on the dangers inherent in the power, not on its allocation under the Constitution. See, e.g., Letters from The Federal Farmer XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315–316 (H. Storing ed. 1981) (arguing that the interpretive power made the Judiciary the most dangerous branch). Writing as “Brutus,” one leading anti-Federalist argued that judges “w[ould] not confine themselves to any fixed or established rules, but w[ould] determine, according to what appears to them, the reason and spirit of the constitution.” Essays of Brutus (Jan. 31, 1788), in 2 id., at 420. The Federalists rejected these arguments, assuring the public that judges would be guided “by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton). Those rules included principles of interpreta- tion that had been set out by jurists for centuries. See, e.g., 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta 10 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment Legem Naturalem Libri Duo 83–86 (1682) (F. Moore transl. 1927); see also 1 W. Blackstone, Commentaries on the Laws of England 59–61 (1765). One of the key elements of the Federalists’ arguments in support of the allocation of power to make binding inter- pretations of the law was that Article III judges would exercise independent judgment. Although “judicial inde- pendence” is often discussed in terms of independence from external threats, the Framers understood the concept to also require independence from the “internal threat” of “human will.” P. Hamburger, Law and Judicial Duty 507, 508 (2008); see also The Federalist No. 78, at 465 (A. Hamilton) (“The judiciary . . . may truly be said to have neither FORCE nor WILL but merely judgment . . . ”). Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources. Internal sources might include per- sonal biases, while external sources might include pres- sure from the political branches, the public, or other interested parties. See Hamburger, supra, at 508–521. The Framers made several key decisions at the Conven- tion with these pressures in mind. For example, they rejected proposals to include a federal council of revision after several participants at the Convention expressed concern that judicial involvement in such a council would foster internal biases. Rufus King of Maryland, for exam- ple, asserted that “the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.” 1 Records of the Federal Convention of 1787, at 98. Alexander Hamilton repeated these concerns in The Federalist, arguing that “the judges, who are to be interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities” or “be induced to embark too far in the political views of [the Executive]” Cite as: 575 U. S. ____ (2015) 11 THOMAS, J., concurring in judgment from too much association with him. The Federalist No. 73, at 446; see also Hamburger, supra, at 508–512. The Framers also created structural protections in the Constitution to free judges from external influences. They provided, for example, that judges should “hold their Offices during good Behaviour” and receive “a Compensa- tion, which shall not be diminished during their Continu- ance in Office.” Art. III, §1. Hamilton noted that such unequivocal language had been shown necessary by the experience of the States, where similar state constitutional protections for judges had not been “sufficiently definite to preclude legislative evasions” of the separation of the judicial power. The Federalist No. 79, at 472. Because “power over a man’s subsistence amounts to a power over his will,” he argued that Article III’s structural protections would help ensure that judges fulfilled their constitutional role. Ibid. (emphasis deleted). The Framers made the opposite choice for legislators and the Executive. Instead of insulating them from exter- nal pressures, the Constitution tied them to those pres- sures. It provided for election of Members of the House of Representatives every two years, Art. I, §2, cl. 1; and selection of Members of the Senate every six years, Art. I, §3, cl. 1. It also provided for the President to be subject to election every four years. Art. II, §1, cl. 1. “The President is [thus] directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame . . . .” See Morrison v. Olson, 487 U.S. 654, 729 (1988) (SCALIA, J., dissenting). To preserve that accountability, we have held that executive officers must be subject to removal by the President to ensure account- ability within the Executive Branch. See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 495 (2010); see also Morrison, supra, at 709 (opinion of SCALIA, J.) (“It is not for us to determine, and we have never presumed to determine, how much of the 12 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are”). Given these structural distinctions between the branches, it is no surprise that judicial interpretations are defini- tive in cases and controversies before the courts. Courts act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Fed- eralist No. 78, at 467 (A. Hamilton). The Legislature and Executive may be swayed by popular sentiment to aban- don the strictures of the Constitution or other rules of law. But the Judiciary, insulated from both internal and exter- nal sources of bias, is duty bound to exercise independent judgment in applying the law. Interpreting agency regulations calls for that exercise of independent judgment. Substantive regulations have the force and effect of law. See, e.g., United States v. Mead Corp., 533 U.S. 218, 231–232 (2001).4 Agencies and pri- —————— 4 These cases also raise constitutional questions about the distinction in administrative law between “substantive” (or “legislative”) and interpretative rules. The United States Court of Appeals for the D. C. Circuit has defined a legislative rule as “[a]n agency action that pur- ports to impose legally binding obligations or prohibitions on regulated parties” and an interpretative rule as “[a]n agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties.” National Mining Assn. v. McCarthy, 758 F.3d 243, 251–252 (2014). And our precedents make clear that administrative agencies must exercise only executive power in promulgating these rules. Arlington v. FCC, 569 U. S. ___, ___, n. 4 (2013) (slip op., at 13, n. 4). But while it is easy to see the promulgation of interpretative rules as an “executive” function—executive officials necessarily interpret the laws they enforce—it is difficult to see what authority the President has “to impose legally binding obligations or prohibitions on regulated parties.” That definition suggests something much closer to the legisla- tive power, which our Constitution does not permit the Executive to exercise in this manner. Because these troubling questions are not Cite as: 575 U. S. ____ (2015) 13 THOMAS, J., concurring in judgment vate parties alike can use these regulations in proceedings against regulated parties. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012) (slip op., at 6–7) (private party relying on Department of Labor regulations); FCC v. Fox Television Stations, Inc., 567 U. S. ___, ___ (2012) (slip op., at 6) (agency issuing notices of liability under regulations). Just as it is critical for judges to exercise independent judgment in applying statutes, it is critical for judges to exercise independent judgment in determining that a regulation properly covers the conduct of regulated parties. Defining the legal mean- ing of the regulation is one aspect of that determination. Seminole Rock deference, however, precludes judges from independently determining that meaning. Rather than judges’ applying recognized tools of interpretation to determine the best meaning of a regulation, this doctrine demands that courts accord “controlling weight” to the agency interpretation of a regulation, subject only to the narrow exception for interpretations that are plainly erroneous or inconsistent with the regulation. That defer- ence amounts to a transfer of the judge’s exercise of inter- pretive judgment to the agency. See 1 S. Johnson, Dic- tionary of the English Language 499 (4th ed. 1773) (defining “[d]efer” as “to leave to another’s judgment”). But the agency, as part of the Executive Branch, lacks the structural protections for independent judgment adopted by the Framers, including the life tenure and salary pro- tections of Article III. Because the agency is thus not properly constituted to exercise the judicial power under the Constitution, the transfer of interpretive judgment raises serious separation-of-powers concerns. —————— directly implicated here, I leave them for another case. See Department of Transportation v. Association of American Railroads, ante, at 19–22 (THOMAS, J., concurring in judgment). 14 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment 2 Seminole Rock is constitutionally questionable for an additional reason: It undermines the judicial “check” on the political branches. Unlike the Legislative and Execu- tive Branches, each of which possesses several political checks on the other, the Judiciary has one primary check on the excesses of political branches. That check is the enforcement of the rule of law through the exercise of judicial power. Judges have long recognized their responsibility to apply the law, even if they did not conceive of it as a “check” on political power. During the 17th century, for example, King James I sought to pressure Chief Justice Coke to affirm the lawfulness of his efforts to raise reve- nue without the participation of Parliament. Hamburger, Law and Judicial Duty, at 200–201. Coke sought time to confer with his fellow jurists to “make an advised answer according to law and reason.” Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). But the King’s representative, Lord Chancellor Ellesmere, responded that “he would advise the Judges to maintain the power and prerogative of the King” and suggested that, “in cases in which there is no authority and prece- dent,” the judiciary should “leave it to the King to order in it according to his wisdom.” Ibid. Coke famously re- sponded, “[T]he King cannot change any part of the com- mon law, nor create any offence by his proclamation, which was not an offence before, without Parliament.” Ibid. When James I later attempted to do just that, Coke declared the proclamations “ ‘utterly against Law and reason, and for that void.’ ” Hamburger, supra, at 202. The Framers expected Article III judges to engage in similar efforts, by applying the law as a “check” on the excesses of both the Legislative and Executive Branches. See, e.g., 3 J. Elliot, Debates in the Several Conventions on the Adoption of the Federal Constitution 553 (1863) (J. Cite as: 575 U. S. ____ (2015) 15 THOMAS, J., concurring in judgment Marshall) (“If [the Government of the United States] make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. . . . They would declare it void”); see also Vile 174. The Framers “contem- plated [the Constitution], as a rule for the government of courts, as well as of the legislature.” Marbury v. Madison, 1 Cranch 137, 179–180 (1803). Thus, if a case involved a conflict between a law and the Constitution, judges would have a duty “to adhere to the latter and disregard the former.” The Federalist No. 78, at 468 (A. Hamilton); see also Marbury, 1 Cranch, at 178. Similarly, if a case in- volved an executive effort to extend a law beyond its meaning, judges would have a duty to adhere to the law that had been properly promulgated under the Constitu- tion. Cf. id., at 157–158 (considering the scope of the President’s constitutional power of appointment). As this Court said long ago, “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written con- stitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” Id., at 180. Article III judges cannot opt out of exercising their check. As we have long recognized, “[t]he Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 5) (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)). This responsibility applies not only to constitutional challenges to particular statutes, see, e.g., Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 2), including those based on the separation of powers, Free Enterprise Fund, 561 U.S., at 501–502, but also to more routine questions about the best interpreta- tion of statutes, see, e.g., Whitfield v. United States, 574 U. S. ___, ___–___ (2015) (slip op., at 2–3), or the compati- 16 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment bility of agency actions with enabling statutes, Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip op., at 10). In each case, the Judiciary is called upon to exercise its independent judgment and apply the law. But we have not consistently exercised the judicial check with respect to administrative agencies. Even though regulated parties have repeatedly challenged agency interpretations as inconsistent with existing regu- lations, we have just as repeatedly declined to exercise independent judgment as to those claims. Instead, we have deferred to the executive agency that both promul- gated the regulations and enforced them. Although an agency’s interpretation of a regulation might be the best interpretation, it also might not. When courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check. That abandonment permits precisely the accumulation of governmental pow- ers that the Framers warned against. See The Federalist No. 47, at 302 (J. Madison). C This accumulation of governmental powers allows agen- cies to change the meaning of regulations at their discre- tion and without any advance notice to the parties. It is precisely this problem that the United States Court of Appeals for the D. C. Circuit attempted to address by requiring agencies to undertake notice and comment procedures before substantially revising definitive inter- pretations of regulations. Paralyzed Veterans, supra. Though legally erroneous, the Court of Appeals’ reasoning was practically sound. When courts give “controlling weight” to an administrative interpretation of a regula- tion—instead of to the best interpretation of it—they effectively give the interpretation—and not the regula- tion—the force and effect of law. To regulated parties, the new interpretation might as well be a new regulation. Cite as: 575 U. S. ____ (2015) 17 THOMAS, J., concurring in judgment These cases provide a classic example of the problem. The Fair Labor Standards Act of 1938 establishes federal minimum wage and overtime requirements, but exempts from these requirements “any employee engaged in a bona fide executive, administrative, or professional capac- ity . . . , or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary).” 29 U.S. C. §213(a)(1). The Department of Labor has accordingly promulgated regula- tions providing that “an employee whose primary duty is selling financial products does not qualify for the adminis- trative exemption.” 29 CFR §541.203(b) (2015). Unsure whether certain mortgage-loan officers qualified as employees whose primary duty is selling financial products, the Mortgage Bankers Association asked the Department of Labor for advice. In 2006, the Department concluded that the officers are not employees whose pri- mary duty is selling financial products. But in 2010, the Department reversed course, concluding exactly the oppo- site. If courts accord “controlling weight” to both the 2006 and 2010 interpretations, the regulated entities are sub- ject to two opposite legal rules imposed under the same regulation. This practice turns on its head the principle that the United States is “a government of laws, and not of men.” Marbury, supra, at 163. Regulations provide notice to regulated parties in only a limited sense because their meaning will ultimately be determined by agencies rather than by the “strict rules and precedents” to which Alexan- der Hamilton once referred.5 —————— 5 The notice problem is exacerbated by agency departures from the procedures established for rulemaking in the APA. Although almost all rulemaking is today accomplished through informal notice and com- ment, the APA actually contemplated a much more formal process for most rulemaking. To that end, it provided for elaborate trial-like hearings in which proponents of particular rules would introduce 18 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment III Although this Court offered no theoretical justifica- tion for Seminole Rock deference when announcing it, sev- eral justifications have been proposed since. None is persuasive. A Probably the most oft-recited justification for Seminole Rock deference is that of agency expertise in administer- ing technical statutory schemes. Under this justification, deference to administrative agencies is necessary when a “regulation concerns ‘a complex and highly technical regu- latory program’ in which the identification and classifica- tion of relevant ‘criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.’ ” Thomas Jefferson Univ., 512 U.S., at 512. This defense of Seminole Rock deference misidentifies the relevant inquiry. The proper question faced by courts in interpreting a regulation is not what the best policy choice might be, but what the regulation means. Because this Court has concluded that “substantive agency regula- tions have the ‘force and effect of law,’ ” Chrysler Corp. v. —————— evidence and bear the burden of proof in support of those proposed rules. See 5 U.S. C. §556. Today, however, formal rulemaking is the Yeti of administrative law. There are isolated sightings of it in the ratemaking context, but else- where it proves elusive. It is somewhat ironic for the Court so ada- mantly to insist that agencies be subject to no greater procedures than those required by the APA when we have not been adamant in requir- ing agencies to comply with even those baseline procedures. See United States v. Florida East Coast R. Co., 410 U.S. 224, 237–238 (1973) (concluding that the APA’s formal procedures, which were to apply “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing,” §553(c), were not triggered by a statute that permitted an agency to engage in rulemaking only “ ‘after [a] hearing’ ”). Cite as: 575 U. S. ____ (2015) 19 THOMAS, J., concurring in judgment Brown, 441 U.S. 281, 295 (1979), such regulations should be interpreted like any other law. Thus, we should “as- sum[e] that the ordinary meaning of the regulation’s language expresses” its purpose and enforce it “according to its terms.” See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010) (internal quotation marks omitted). Judges are at least as well suited as administra- tive agencies to engage in this task. Cf. Marbury, 1 Cranch, at 177 (“It is emphatically the province and duty of the judicial department to say what the law is”). In- deed, judges are frequently called upon to interpret the meaning of legal texts and are able to do so even when those texts involve technical language. See, e.g., Barber v. Gonzales, 347 U.S. 637, 640–643 (1954) (interpreting deportation statute according to technical meaning). Fundamentally, the argument about agency expertise is less about the expertise of agencies in interpreting lan- guage than it is about the wisdom of according agencies broad flexibility to administer statutory schemes.6 “But —————— 6 Many decisions of this Court invoke agency expertise as a justifica- tion for deference. This argument has its root in the support for admin- istrative agencies that developed during the Progressive Era in this country. The Era was marked by a move from the individualism that had long characterized American society to the concept of a society organized for collective action. See A. Link, Woodrow Wilson and the Progressive Era 1910–1917, p. 1 (1954). That move also reflected a deep disdain for the theory of popular sovereignty. As Woodrow Wilson wrote before he attained the presidency, “Our peculiar American difficulty in organizing administration is not the danger of losing liberty, but the danger of not being able or willing to separate its essentials from its accidents. Our success is made doubtful by that besetting error of ours, the error of trying to do too much by vote.” Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 214 (1887). In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” Id., at 215. Reflecting this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in 20 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment policy arguments supporting even useful ‘political inven- tions’ are subject to the demands of the Constitution which defines powers and . . . sets out . . . how those powers are to be exercised.” INS v. Chadha, 462 U.S. 919, 945 (1983). Even in the face of a perceived necessity, the Constitution protects us from ourselves. New York v. United States, 505 U.S. 144, 187–188 (1992). B Another oft-recited justification for Seminole Rock def- erence is that agencies are better situated to define the original intent behind their regulations. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 152–153 (1991). Under this justification, “[b]ecause the Secretary [of Labor] promulgates th[e] standards, the Secretary is in a better position . . . to reconstruct the purpose of the regulations in question.” Id., at 152. This justification rings hollow. This Court has afforded Seminole Rock deference to agency interpretations even when the agency was not the original drafter. See Pauley, 501 U.S., at 696–698 (applying Seminole Rock deference to one agency’s interpretation of another agency’s regula- tions because Congress had delegated authority to both to administer the program). It has likewise granted Semi- nole Rock deference to agency interpretations that are inconsistent with interpretations adopted closer in time to the promulgation of the regulations. See, e.g., Long Island Care at Home, 551 U.S., at 170–171. Even if the scope of Seminole Rock deference more closely matched the original-drafter justification, it would still fail. It is the text of the regulations that have the force and effect of law, not the agency’s intent. “Citizens —————— significant expansions of the administrative state, ultimately culminat- ing in the New Deal. See generally M. Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–1933 (1990). Cite as: 575 U. S. ____ (2015) 21 THOMAS, J., concurring in judgment arrange their affairs not on the basis of their legislators’ unexpressed intent, but on the basis of the law as it is written and promulgated.” Zuni Public School Dist. No. 89 v. Department of Education, 550 U.S. 81, 119 (2007) (SCALIA, J., dissenting). Cf. Wyeth v. Levine, 555 U.S. 555, 586–587 (2009) (THOMAS, J., concurring in judgment) (noting that only “federal standards . . . that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures”—not Congress’ “purposes and objectives”—can become the “law of the land”). “To be governed by legislated text rather than legislators’ inten- tions is what it means to be ‘a Government of laws, not of men.’ ” Zuni Public School Dist. No. 89, supra, at 119 (SCALIA, J., dissenting). Only the text of a regulation goes through the procedures established by Congress for agency rulemaking. And it is that text on which the public is entitled to rely. For the same reasons that we should not accord controlling weight to postenactment expressions of intent by individual Members of Congress, see Sullivan v. Finkelstein, 496 U.S. 617, 631–632 (1990) (SCALIA, J., concurring in part), we should not accord controlling weight to expressions of intent by administrators of agencies. C A third asserted justification for Seminole Rock defer- ence is that Congress has delegated to agencies the au- thority to interpret their own regulations. See, e.g., Mar- tin, 499 U.S., at 151. The theory is that, “[b]ecause applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, . . . the power authorita- tively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Ibid. This justification fails because Congress lacks authority 22 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment to delegate the power. As we have explained in an analo- gous context, “[t]he structure of the Constitution does not permit Congress to execute the laws; it follows that Con- gress cannot grant to an officer under its control what it does not possess.” Bowsher v. Synar, 478 U.S. 714, 726 (1986). Similarly, the Constitution does not empower Congress to issue a judicially binding interpretation of the Constitution or its laws. Lacking the power itself, it can- not delegate that power to an agency. To hold otherwise would be to vitiate the separation of powers and ignore the “sense of a sharp necessity to sepa- rate the legislative from the judicial power . . . [that] triumphed among the Framers of the new Federal Consti- tution.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221 (1995). As this Court has explained, the “essential balance” of the Constitution is that the Legislature is “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’ [is] ‘the proper and peculiar province of the courts.’ ” Id., at 222 (citation omitted; third brackets added). Although the Constitution imposes a duty on all three branches to interpret the laws within their own spheres, the power to create legally binding interpretations rests with the Judi- ciary. See Marbury, 1 Cranch, at 177, 179–180. D A final proposed justification for Seminole Rock defer- ence is that too much oversight of administrative matters would imperil the “independence and esteem” of judges. See, e.g., Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses of Charles Evans Hughes, 1906–1916, p. 185 (2d ed. 1916). The argument goes that questions of administration are those which “lie close to the public impatience,” id., at 186, and thus the courts’ resolution of such questions could Cite as: 575 U. S. ____ (2015) 23 THOMAS, J., concurring in judgment “expose them to the fire of public criticism,” id., at 187. But this argument, which boils down to a policy judg- ment of questionable validity, cannot vitiate the constitu- tional allocation of powers. The Judicial Branch is sepa- rate from the political branches for a reason: It has the obligation to apply the law to cases and controversies that come before it, and concerns about the popular esteem of individual judges—or even the Judiciary as a whole—have no place in that analysis. Our system of Government could not long survive absent adherence to the written Constitution that formed it. * * * Although on the surface these cases require only a straightforward application of the APA, closer scrutiny reveals serious constitutional questions lurking beneath. I have “acknowledge[d] the importance of stare decisis to the stability of our Nation’s legal system.” “But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.” McDonald v. Chicago, 561 U.S. 742, 812 (2010) (THOMAS, J., concurring in part and concurring in judgment) (citation omitted). By my best lights, the entire line of precedent beginning with Seminole Rock raises serious constitutional questions and should be reconsidered in an appropriate case

I agree with the Court’s decision, and all of its reasoning demonstrag the incompatibility of the D. C. Circuit’s Paralyzed holding with the Administrative Pro- cedure Act. Paralyzed of I do not agree, however, with the Court’s portrayal of the result it produces as a vindica- tion of the balance Congress struck when it “weighed the costs and benefits of placing more rigorous restrictions on the issuance of interpretive rules.” Ante, at 9. That depiction is accurate enough if one looks at this case in isolation. Considered alongside our law of deference to administrative determinations, however, today’s decision produces a balance between power and procedure quite different from the one Congress chose when it enacted the APA. “The [APA] was framed against a background of rapid expansion of the administrative process as a check upon 2 PEREZ v. MORTGAGE BANKERS ASSN. SCALIA, J., concurring in judgment administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creag their offices.” United States v. Morton Salt Co., 338 U.S. 632, 644 (1950). The Act guards against excesses in rule- making by requiring notice and comment. Before an agency makes a rule, it normally must notify the public of the proposal, invite them to comment on its shortcomings, consider and respond to their arguments, and explain its final decision in a statement of the rule’s basis and pur- pose. 5 U.S. C. ante, at 2. The APA exempts interpretive rules from these re- quirements. But this concession to agencies was meant to be more modest in its effects than it is today. For despite exempg interpretive rules from notice and comment, the Act provides that “the reviewing court shall interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” (emphasis added). The Act thus contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations. In such a regime, the exemption for interpretive rules does not add much to agency power. An agency may use interpretive rules to advise the public by explaining its interpretation of the law. But an agency may not use interpretive rules to bind the public by making law, because it remains the responsibility of the court to decide whether the law means what the agency says it means. Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ inter- pretations of statutes and regulations. Never mentioning ’s directive that the “reviewing court interpret statutory provisions,” we have held that agencies may authoritatively resolve ambiguities in statutes. Chevron U. S. A. And never mentioning ’s directive that the “reviewing court determine Cite as: 575 U. S. (2015) 3 SCALIA, J., concurring in judgment the meaning or applicability of the terms of an agency action,” we have—relying on a case decided before the APA, —held that agencies may authoritatively resolve ambiguities in regulations. Auer v. Robbins, 519 U.S. 452, 461 By supplemeng the APA with judge-made doctrines of deference, we have revolutionized the import of inter- pretive rules’ exemption from notice-and-comment rule- making. Agencies may now use these rules not just to advise the public, but also to bind them. After all, if an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded simi- lar deference. Interpretive rules that command deference do have the force of law. The Court’s reasons for resisg this obvious point would not withstand a gentle breeze. Even when an agen- cy’s interpretation gets deference, the Court argues, “it is the court that ultimately decides whether [the text] means what the agency says.” Ante, at 10–11, n. 4. That is not quite so. So long as the agency does not stray beyond the ambiguity in the text being interpreted, deference compels the reviewing court to “decide” that the text means what the agency says. The Court conues that “deference is not an inexorable command in all cases,” because (for example) it does not apply to plainly erroneous interpreta- tions. True, but beside the point. Saying all inter- pretive rules lack force of law because plainly erroneous interpretations do not bind courts is like saying all sub- stantive rules lack force of law because arbitrary and capricious rules do not bind courts. Of course an interpre- tive rule must meet certain conditions before it gets defer- ence—the interpretation must, for instance, be reason- able—but once it does so it is every bit as binding as a substantive rule. So the point stands: By deferring to 4 PEREZ v. MORTGAGE BANKERS ASSN. SCALIA, J., concurring in judgment interpretive rules, we have allowed agencies to make binding rules unhampered by notice-and-comment procedures. The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setg forth agency interpretation of statutes. But an agency’s interpretation of its own regulations is an- other matter. By giving that category of interpretive rules Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment. The APA does not remotely contemplate this regime. Still and all, what are we to do about the problem? The Paralyzed doctrine is a courageous (indeed, brazen) attempt to limit the mischief by requiring an interpretive rule to go through notice and comment if it revises an earlier definitive interpretation of a regulation. That solution is unlawful for the reasons set forth in the Court’s opinion: It contradicts the APA’s unqualified ex- emption of interpretive rules from notice-and-comment rulemaking. But I think there is another solution—one unavailable to the D. C. Circuit since it involves the overruling of one this Court’s decisions (that being even a greater fault than merely ignoring the APA). As I have described elsewhere, the rule of Chevron, if it did not comport with the APA, at least was in conformity with the long history of judicial review of executive action, where “[s]tatutory ambiguities were left to reasonable resolution by the Executive.” Cite as: 575 U. S. (2015) 5 SCALIA, J., concurring in judgment United (SCALIA, J., disseng). I am unaware of any such history justifying deference to agency interpretations of its own regulations. And there are weighty reasons to deny a lawgiver the power to write ambiguous laws and then be the judge of what the ambiguity means. See Decker v. Northwest Environmental Defense Center, 568 U. S. – (2013) (SCALIA, J., concurring in part and dissent- ing in part) (slip op., at 1–7). I would therefore restore the balance originally struck by the APA with respect to an agency’s interpretation of its own regulations, not by rewrig the Act in order to make up for Auer, but by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct. Cite as: 575 U. S. (2015) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES Nos. 13–1041 and 13–1052 THOMAS E. PEREZ, SECRETARY OF LABOR, ET AL., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION ET AL. JEROME NICKOLS, ET AL., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [March 9, 2015] JUSTICE THOMAS, concurring in the judgment. I concur in the Court’s holding that the doctrine first announced in Paralyzed of is inconsistent with the Administrative Procedure Act (APA), 5 U.S. C. et seq., and must be rejected. An agency’s substantial revision of its interpretation of a regulation does not amount to an “amendment” of the regulation as that word is used in the statute. I write separately because these cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations. That line of precedents, beginning with requires judges to defer to agency interpretations of regulations, thus, as happened in these cases, giving legal effect to the interpretations rather than the regulations themselves. Because this doctrine effects a transfer of the judicial power to an exec- 2 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment utive agency, it raises constitutional concerns. This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent. I The doctrine of deference to an agency’s interpretation of regulations is usually traced back to this Court’s deci- sion in Seminole which involved the interpre- tation of a war-time price control regulation, Along with a general price freeze, the Administrator of the Office of Price Administration had promulgated special- ized regulations governing the maximum price for differ- ent commodities. When the Administrator brought an enforcement action against a manufacturer of crushed stone, the manufacturer challenged the Adminis- trator’s interpretation of his regulations. The lower courts agreed with the manufacturer’s inter- pretation, at 412–413, but this Court reversed. In setg out the approach it would apply to the case, the Court announced—without citation or explanation—that an administrative interpretation of an ambiguous regula- tion was entitled to “controlling weight”: “Since this involves an interpretation of an adminis- trative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpreta- tion, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” –414. Cite as: 575 U. S. (2015) 3 THOMAS, J., concurring in judgment The Court then concluded that the rule “clearly” favored the Administrator’s interpretation, rendering this discus- sion dictum. at 415–417. From this unsupported rule developed a doctrine of deference that has taken on a life of its own.1 It has been broadly applied to regulations issued by agencies across a broad spectrum of subjects. See, e.g., (forests); 104–105 (1971) (Selective Service); (1969) (deportation); 16–17 (1965) (oil and gas leases). It has even been applied to an agency’s interpretation of another agency’s regulations. See 696– 699 (1991). And, it has been applied to an agency inter- pretation that was inconsistent with a previous interpre- tation of the same regulation. See Long Island Care at It has been applied to formal and informal interpretations alike, including those taken during litigation. See Its reasoning has also been extended outside the context of traditional agency regulations into the realm of criminal sentencing. See (con- cluding that the Sentencing Commission’s commentary on its Guidelines is analogous to an agency interpretation of its own regulations, entitled to Seminole deference). The Court has even applied the doctrine to an agency interpretation of a regulation cast in such vague aspira- tional terms as to have no substantive content. See —————— 1 Although the Court has appeared to treat our agency deference regimes as precedents entitled to stare decisis effect, some scholars have noted that they might instead be classified as interpretive tools. See, e.g., C. Nelson, Statutory Interpretation 701 (2011). Such tools might not be entitled to such effect. Because resolution of that issue is not necessary to my conclusion here, I leave it for another day. 4 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment Thomas Jefferson 512–513 ; see also On this steady march toward deference, the Court only once expressly declined to apply Seminole deference on the ground that the agency’s interpretation was plainly erroneous.2 In that case, we were faced with the predict- able consequence of this line of precedents: An agency sought deference to an opinion letter that interpreted a permissive regulation as mandatory. See Christensen v. Harris County, We rejected that request for deference as an effort, “under the guise of interpreg a regulation, to create de facto a new regula- tion.” This narrow limit on the broad deference given the agency interpretations, though sound, could not save a doctrine that was constitutionally infirm from the start. Seminole was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns. —————— 2 The Court has also twice expressly found Seminole deference inapplicable for other reasons. Christopher v. SmithKline Beecham Corp., 567 U. S. – (2012) (slip op., at 13–14) (“[W]here, as here, an agency’s announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute. [W]hatever the general merits of Auer deference, it is unwarranted here”); 546 U.S. 256–257 (2006) (“In our view Auer and the standard of deference it accords to an agency are inapplicable here. The language the Interpretive Rule addresses comes from Congress, not the Attorney General, and the near equivalence of the statute and regulation belies the Government’s argument for Auer deference”). Occasionally, Members of this Court have argued in separate writ- ings that the Court failed appropriately to apply Seminole defer- ence, but in none of those cases did the majority opinions of the Court expressly refuse to do so. See (2005); Allentown Mack Sales & Service, (1998); Director, Office of Workers’ Compensation ; United States v. Swank, 451 U.S. 571 (1981); Cite as: 575 U. S. (2015) 5 THOMAS, J., concurring in judgment II We have not always been vigilant about protecg the structure of our Constitution. Although this Court has repeatedly invoked the “separation of powers” and “the constitutional system of checks and balances” as core principles of our constitutional design, essential to the protection of individual liberty, see, e.g., Stern v. Marshall, 564 U. S. – (2011) (slip op., at 16–17) (internal quotation marks omitted), it has also endorsed a “more pragmatic, flexible approach” to that design when it has seemed more convenient to permit the powers to be mixed, see, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977). As the history shows, that approach runs the risk of compromising our constitutional structure. A The Constitution’s particular blend of separated powers and checks and balances was informed by centuries of political thought and experiences. See M. Vile, Constitu- tionalism and the Separation of Powers 38, 168–169 (2d ed. 1998) (Vile). Though the theories of the separation of powers and checks and balances have roots in the ancient world, events of the 17th and 18th centuries played a crucial role in their development and informed the men who crafted and ratified the Constitution. Over a century before our War of Independence, the English Civil War catapulted the theory of the separation of powers to prominence. As political theorists of the day witnessed the conflict between the King and Parliament, and the dangers of tyrannical government posed by each, they began to call for a clear division of authority between the two. at 48–49. A 1648 work titled The Royalist’s Defence offered perhaps the first extended account of the theory of the separation of powers: “[W]hilst the Supreamacy, the Power to Judge the Law, 6 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment and Authority to make new Lawes, are kept in severall hands, the known Law is preserved, but united, it is van- ished, instantly thereupon, and Arbytrary and Tyrannicall power is introduced.” The Royalist’s Defence 80 (1648) (italics in original). John and Baron de Montesquieu endorsed and expanded on this concept. See Vile 63–64. They agreed with the general theory set forth in The Royalist’s De- fence, emphasizing the need for a separation of powers to protect individual liberty. J. Second Treatise of Civil Government p. (J. Gough ed. 1947); Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). But they also advo- cated a system of checks and balances to reinforce that separation. Vile –73, 102. For instance, they agreed that the executive should have the power to assemble and dismiss the legislature and to consent to laws passed by it. See 156, at 75, 77–78; Montesquieu, Spirit of the Laws, at 157, 159. Montesquieu warned that “power should be a check to power” lest the legislature “arrogate to itself what authority it pleased [and] soon destroy all the other powers.” The experience of the States during the period between the War of Independence and the ratification of the Con- stitution confirmed the wisdom of combining these theo- ries. Although many State Constitutions of the time included language unequivocally endorsing the separation of powers, they did not secure that separation with checks and balances, Vile 147, and actively placed traditional executive and judicial functions in the legislature, G. Wood, The Creation of the American Republic 1776– 1787, pp. 155–156 (1969). Under these arrangements, state legislatures arrogated power to themselves and began to confiscate property, approve the pring of paper money, and suspend the ordinary means for the recovery Cite as: 575 U. S. (2015) 7 THOMAS, J., concurring in judgment of debts. at 403–409.3 When the Framers met for the Constitutional Conven- tion, they understood the need for greater checks and balances to reinforce the separation of powers. As Madi- son remarked, “experience has taught us a distrust” of the separation of powers alone as “a sufficient security to each [branch] [against] encroachments of the others.” 2 Re- cords of the Federal Convention of 1787, p. 77 (M. Farrand rev. 1966). “[I]t is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper.” The Framers thus separated the three main powers of Government—legislative, executive, and judi- cial—into the three branches created by Articles I, II, and III. But they also created checks and balances to reinforce that separation. For example, they gave Congress specific enumerated powers to enact legislation, Art. I, but gave the President the power to veto that legislation, subject to congressional override by a supermajority vote, Art. I, cls. 2, 3. They gave the President the power to appoint principal officers of the United States, but gave the Senate the power to give advice and consent to those appointments. Art. II, cl. 2. They gave the House and Senate the power to agree to adjourn for more than three days, Art. I, cl. 4, but gave the President the power, “in Case of Disagreement between them,” to adjourn the Congress “to such Time as he shall think proper.” Art. II, cl. 3. During the ratification debates, Madison argued that this structure represented “the great security” for liberty in the Constitution. The Federalist No. 51, p. 321 —————— 3 The practices of the time can perhaps best be summarized by the following commentary from a contemporaneous magazine: “[S]o many legal infractions of sacred right—so many public invasions of private property—so many wanton abuses of legislative powers!” Giles Hickory (Noah Webster), Government, The American Magazine, Mar. 1788, p. 206. 8 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment (C. Rossiter ed. 1961) (J. Madison). To the Framers, the separation of powers and checks and balances were more than just theories. They were practical and real protections for individual liberty in the new Constitution. See Mistretta v. United States, 488 U.S. 361, 426 (SCALIA, J., disseng) (“[The Con- stitution] is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling [of governmental powers] was, in the generality of things, acceptable, and set forth their conclusions in the docu- ment”). The Judiciary—no less than the other two branches—has an obligation to guard against deviations from those principles. The Seminole line of prece- dent is one such deviation. B Seminole raises two related constitutional con- cerns. It represents a transfer of judicial power to the Executive Branch, and it amounts to an erosion of the judicial obligation to serve as a “check” on the political branches. 1 When a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the “judicial Power of the United States.” Art. III, For the reasons I explain in this section, the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreg and expounding upon the laws. Those who ratified the Constitution knew that legal texts would often contain ambiguities. See generally Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 20–21, and Cite as: 575 U. S. (2015) 9 THOMAS, J., concurring in judgment n. 66 ; Nelson, Originalism and Interpretive Con- ventions, 525–526 (2003). As James Madison explained, “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal” The Federalist No. 37, at 229. The judicial power was understood to include the power to resolve these ambiguities over time. See Alexan- der Hamilton lauded this power, arguing that “[t]he inter- pretation of the laws is the proper and peculiar province of the courts.” No. 78, at 467. It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding. Vile 360. Although the Federalists and Anti-Federalists engaged in a public debate about this interpretive power, that debate centered on the dangers inherent in the power, not on its allocation under the Constitution. See, e.g., Letters from The Federal Farmer XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315–316 (H. Storing ed. 1981) (arguing that the interpretive power made the Judiciary the most dangerous branch). Wrig as “Brutus,” one leading anti-Federalist argued that judges “w[ould] not confine themselves to any fixed or established rules, but w[ould] determine, according to what appears to them, the reason and spirit of the constitution.” Essays of Brutus (Jan. 31, 1788), in 2 The Federalists rejected these arguments, assuring the public that judges would be guided “by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton). Those rules included principles of interpreta- tion that had been set out by jurists for centuries. See, e.g., 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta 10 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment Legem Naturalem Libri Duo 83–86 (1682) (F. Moore transl. 1927); see also 1 W. Blackstone, Commentaries on the Laws of England 59–61 (1765). One of the key elements of the Federalists’ arguments in support of the allocation of power to make binding inter- pretations of the law was that Article III judges would exercise independent judgment. Although “judicial inde- pendence” is often discussed in terms of independence from external threats, the Framers understood the concept to also require independence from the “internal threat” of “human will.” P. Law and Judicial Duty 507, 508 (2008); see also The Federalist No. 78, at 465 (A. Hamilton) (“The judiciary may truly be said to have neither FORCE nor WILL but merely judgment ”). Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources. Internal sources might include per- sonal biases, while external sources might include pres- sure from the political branches, the public, or other interested parties. See at 508–521. The Framers made several key decisions at the Conven- tion with these pressures in mind. For example, they rejected proposals to include a federal council of revision after several participants at the Convention expressed concern that judicial involvement in such a council would foster internal biases. Rufus King of Maryland, for exam- ple, asserted that “the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.” 1 Records of the Federal Convention of 1787, at 98. Alexander Hamilton repeated these concerns in The Federalist, arguing that “the judges, who are to be interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities” or “be induced to embark too far in the political views of [the Executive]” Cite as: 575 U. S. (2015) 11 THOMAS, J., concurring in judgment from too much association with him. The Federalist No. 73, at 446; see also at 508–512. The Framers also created structural protections in the Constitution to free judges from external influences. They provided, for example, that judges should “hold their Offices during good Behaviour” and receive “a Compensa- tion, which shall not be diminished during their Conu- ance in Office.” Art. III, Hamilton noted that such unequivocal language had been shown necessary by the experience of the States, where similar state constitutional protections for judges had not been “sufficiently definite to preclude legislative evasions” of the separation of the judicial power. The Federalist No. 79, at 4. Because “power over a man’s subsistence amounts to a power over his will,” he argued that Article III’s structural protections would help ensure that judges fulfilled their constitutional role. The Framers made the opposite choice for legislators and the Executive. Instead of insulag them from exter- nal pressures, the Constitution tied them to those pres- sures. It provided for election of Members of the House of Representatives every two years, Art. I, cl. 1; and selection of Members of the Senate every six years, Art. I, cl. 1. It also provided for the President to be subject to election every four years. Art. II, cl. 1. “The President is [thus] directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame” See v. Olson, 487 U.S. 654, 9 (1988) (SCALIA, J., disseng). To preserve that accountability, we have held that executive officers must be subject to removal by the President to ensure account- ability within the Executive Branch. See Free Enterprise v. Public Company Accoung Oversight Bd., 561 U.S. 477, 495 ; see also (opinion of SCALIA, J.) (“It is not for us to determine, and we have never presumed to determine, how much of the 12 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are”). Given these structural disctions between the branches, it is no surprise that judicial interpretations are defini- tive in cases and controversies before the courts. Courts act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Fed- eralist No. 78, at 467 (A. Hamilton). The Legislature and Executive may be swayed by popular sentiment to aban- don the strictures of the Constitution or other rules of law. But the Judiciary, insulated from both internal and exter- nal sources of bias, is duty bound to exercise independent judgment in applying the law. Interpreg agency regulations calls for that exercise of independent judgment. Substantive regulations have the force and effect of law. See, e.g., United4 Agencies and pri- —————— 4 These cases also raise constitutional questions about the disction in administrative law between “substantive” (or “legislative”) and interpretative rules. The United States Court of Appeals for the D. C. Circuit has defined a legislative rule as “[a]n agency action that pur- ports to impose legally binding obligations or prohibitions on regulated parties” and an interpretative rule as “[a]n agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties.” National Mining 758 F.3d –252 (2014). And our precedents make clear that administrative agencies must exercise only executive power in promulgag these rules. Arlington v. FCC, 569 U. S. n. 4 (2013) (slip op., at 13, n. 4). But while it is easy to see the promulgation of interpretative rules as an “executive” function—executive officials necessarily interpret the laws they enforce—it is difficult to see what authority the President has “to impose legally binding obligations or prohibitions on regulated parties.” That definition suggests something much closer to the legisla- tive power, which our Constitution does not permit the Executive to exercise in this manner. Because these troubling questions are not Cite as: 575 U. S. (2015) 13 THOMAS, J., concurring in judgment vate parties alike can use these regulations in proceedings against regulated parties. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U. S. – (2012) (slip op., at 6–7) (private party relying on Department of Labor regulations); FCC v. Fox Television Stations, Inc., 567 U. S. (2012) (slip op., at 6) (agency issuing notices of liability under regulations). Just as it is critical for judges to exercise independent judgment in applying statutes, it is critical for judges to exercise independent judgment in determining that a regulation properly covers the conduct of regulated parties. Defining the legal mean- ing of the regulation is one aspect of that determination. Seminole deference, however, precludes judges from independently determining that meaning. Rather than judges’ applying recognized tools of interpretation to determine the best meaning of a regulation, this doctrine demands that courts accord “controlling weight” to the agency interpretation of a regulation, subject only to the narrow exception for interpretations that are plainly erroneous or inconsistent with the regulation. That defer- ence amounts to a transfer of the judge’s exercise of inter- pretive judgment to the agency. See 1 S. Johnson, Dic- tionary of the English Language 499 (4th ed. 1773) (defining “[d]efer” as “to leave to another’s judgment”). But the agency, as part of the Executive Branch, lacks the structural protections for independent judgment adopted by the Framers, including the life tenure and salary pro- tections of Article III. Because the agency is thus not properly constituted to exercise the judicial power under the Constitution, the transfer of interpretive judgment raises serious separation-of-powers concerns. —————— directly implicated here, I leave them for another case. See Department of Transportation v. Association of American Railroads, ante, at 19–22 (THOMAS, J., concurring in judgment). 14 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment 2 Seminole is constitutionally questionable for an additional reason: It undermines the judicial “check” on the political branches. Unlike the Legislative and Execu- tive Branches, each of which possesses several political checks on the other, the Judiciary has one primary check on the excesses of political branches. That check is the enforcement of the rule of law through the exercise of judicial power. Judges have long recognized their responsibility to apply the law, even if they did not conceive of it as a “check” on political power. During the 17th century, for example, King James I sought to pressure Chief Justice Coke to affirm the lawfulness of his efforts to raise reve- nue without the participation of Parliament. Law and Judicial Duty, at 200–201. Coke sought time to confer with his fellow jurists to “make an advised answer according to law and reason.” Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). But the King’s representative, Lord Chancellor Ellesmere, responded that “he would advise the Judges to maintain the power and prerogative of the King” and suggested that, “in cases in which there is no authority and prece- dent,” the judiciary should “leave it to the King to order in it according to his wisdom.” Coke famously re- sponded, “[T]he King cannot change any part of the com- mon law, nor create any offence by his proclamation, which was not an offence before, without Parliament.” When James I later attempted to do just that, Coke declared the proclamations “ ‘utterly against Law and reason, and for that void.’ ” The Framers expected Article III judges to engage in similar efforts, by applying the law as a “check” on the excesses of both the Legislative and Executive Branches. See, e.g., 3 J. Elliot, Debates in the Several Conventions on the Adoption of the Federal Constitution 553 (1863) (J. Cite as: 575 U. S. (2015) 15 THOMAS, J., concurring in judgment Marshall) (“If [the Government of the United States] make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would declare it void”); see also Vile 174. The Framers “contem- plated [the Constitution], as a rule for the government of courts, as well as of the legislature.” Thus, if a case involved a conflict between a law and the Constitution, judges would have a duty “to adhere to the latter and disregard the former.” The Federalist No. 78, at 468 (A. Hamilton); see also Similarly, if a case in- volved an executive effort to extend a law beyond its meaning, judges would have a duty to adhere to the law that had been properly promulgated under the Constitu- tion. Cf. at 157–158 (considering the scope of the President’s constitutional power of appointment). As this Court said long ago, “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written con- stitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” Article III judges cannot opt out of exercising their check. As we have long recognized, “[t]he Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky v. Clinton, 566 U. S. (2012) (slip op., at 5) ). This responsibility applies not only to constitutional challenges to particular statutes, see, e.g., Shelby County v. Holder, 570 U. S. (2013) (slip op., at 2), including those based on the separation of powers, Free Enterprise –502, but also to more roue questions about the best interpreta- tion of statutes, see, e.g., Whitfield v. United States, 574 U. S. – (2015) (slip op., at 2–3), or the compati- 16 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment bility of agency actions with enabling statutes, Utility Air Regulatory Group v. EPA, 573 U. S. (2014) (slip op., at 10). In each case, the Judiciary is called upon to exercise its independent judgment and apply the law. But we have not consistently exercised the judicial check with respect to administrative agencies. Even though regulated parties have repeatedly challenged agency interpretations as inconsistent with exisg regu- lations, we have just as repeatedly declined to exercise independent judgment as to those claims. Instead, we have deferred to the executive agency that both promul- gated the regulations and enforced them. Although an agency’s interpretation of a regulation might be the best interpretation, it also might not. When courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check. That abandonment permits precisely the accumulation of governmental pow- ers that the Framers warned against. See The Federalist No. 47, at 302 (J. Madison). C This accumulation of governmental powers allows agen- cies to change the meaning of regulations at their discre- tion and without any advance notice to the parties. It is precisely this problem that the United States Court of Appeals for the D. C. Circuit attempted to address by requiring agencies to undertake notice and comment procedures before substantially revising definitive inter- pretations of regulations. Paralyzed Though legally erroneous, the Court of Appeals’ reasoning was practically sound. When courts give “controlling weight” to an administrative interpretation of a regula- tion—instead of to the best interpretation of it—they effectively give the interpretation—and not the regula- tion—the force and effect of law. To regulated parties, the new interpretation might as well be a new regulation. Cite as: 575 U. S. (2015) 17 THOMAS, J., concurring in judgment These cases provide a classic example of the problem. The Fair Labor Standards Act of 1938 establishes federal minimum wage and overtime requirements, but exempts from these requirements “any employee engaged in a bona fide executive, administrative, or professional capac- ity or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary).” 29 U.S. C. The Department of Labor has accordingly promulgated regula- tions providing that “an employee whose primary duty is selling financial products does not qualify for the adminis- trative exemption.” (b) (2015). Unsure whether certain mortgage-loan officers qualified as employees whose primary duty is selling financial products, the Mortgage Bankers Association asked the Department of Labor for advice. In 2006, the Department concluded that the officers are not employees whose pri- mary duty is selling financial products. But in 2010, the Department reversed course, concluding exactly the oppo- site. If courts accord “controlling weight” to both the 2006 and 2010 interpretations, the regulated entities are sub- ject to two opposite legal rules imposed under the same regulation. This practice turns on its head the principle that the United States is “a government of laws, and not of men.” Regulations provide notice to regulated parties in only a limited sense because their meaning will ultimately be determined by agencies rather than by the “strict rules and precedents” to which Alexan- der Hamilton once referred.5 —————— 5 The notice problem is exacerbated by agency departures from the procedures established for rulemaking in the APA. Although almost all rulemaking is today accomplished through informal notice and com- ment, the APA actually contemplated a much more formal process for most rulemaking. To that end, it provided for elaborate trial-like hearings in which proponents of particular rules would introduce 18 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment III Although this Court offered no theoretical justifica- tion for Seminole deference when announcing it, sev- eral justifications have been proposed since. None is persuasive. A Probably the most oft-recited justification for Seminole deference is that of agency expertise in administer- ing technical statutory schemes. Under this justification, deference to administrative agencies is necessary when a “regulation concerns ‘a complex and highly technical regu- latory program’ in which the identification and classifica- tion of relevant ‘criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.’ ” Thomas Jefferson Univ., 512 U.S., at 512. This defense of Seminole deference misidentifies the relevant inquiry. The proper question faced by courts in interpreg a regulation is not what the best policy choice might be, but what the regulation means. Because this Court has concluded that “substantive agency regula- tions have the ‘force and effect of law,’ ” Chrysler Corp. v. —————— evidence and bear the burden of proof in support of those proposed rules. See 5 U.S. C. Today, however, formal rulemaking is the Yeti of administrative law. There are isolated sighgs of it in the ratemaking context, but else- where it proves elusive. It is somewhat ironic for the Court so ada- mantly to insist that agencies be subject to no greater procedures than those required by the APA when we have not been adamant in requir- ing agencies to comply with even those baseline procedures. See United (concluding that the APA’s formal procedures, which were to apply “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing,” were not triggered by a statute that permitted an agency to engage in rulemaking only “ ‘after [a] hearing’ ”). Cite as: 575 U. S. (2015) 19 THOMAS, J., concurring in judgment Brown, such regulations should be interpreted like any other law. Thus, we should “as- sum[e] that the ordinary meaning of the regulation’s language expresses” its purpose and enforce it “according to its terms.” See (internal quotation marks omitted). Judges are at least as well suited as administra- tive agencies to engage in this task. Cf. 1 Cranch, at 177 (“It is emphatically the province and duty of the judicial department to say what the law is”). In- deed, judges are frequently called upon to interpret the meaning of legal texts and are able to do so even when those texts involve technical language. See, e.g., Barber v. Gonzales, (interpreg deportation statute according to technical meaning). amentally, the argument about agency expertise is less about the expertise of agencies in interpreg lan- guage than it is about the wisdom of according agencies broad flexibility to administer statutory schemes.6 “But —————— 6 Many decisions of this Court invoke agency expertise as a justifica- tion for deference. This argument has its root in the support for admin- istrative agencies that developed during the Progressive Era in this country. The Era was marked by a move from the individualism that had long characterized American society to the concept of a society organized for collective action. See A. Link, Woodrow Wilson and the Progressive Era 1910–1917, p. 1 That move also reflected a deep disdain for the theory of popular sovereignty. As Woodrow Wilson wrote before he attained the presidency, “Our peculiar American difficulty in organizing administration is not the danger of losing liberty, but the danger of not being able or willing to separate its essentials from its accidents. Our success is made doubtful by that besetg error of ours, the error of trying to do too much by vote.” Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 214 (1887). In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” Reflecg this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in 20 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment policy arguments supporg even useful ‘political inven- tions’ are subject to the demands of the Constitution which defines powers and sets out how those powers are to be exercised.” U.S. 919, (1983). Even in the face of a perceived necessity, the Constitution protects us from ourselves. New York v. United States, B Another oft-recited justification for Seminole def- erence is that agencies are better situated to define the original intent behind their regulations. See Mar v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 152–153 (1991). Under this justification, “[b]ecause the Secretary [of Labor] promulgates th[e] standards, the Secretary is in a better position to reconstruct the purpose of the regulations in question.” This justification rings hollow. This Court has afforded Seminole deference to agency interpretations even when the agency was not the original drafter. See Pauley, –698 (applying Seminole deference to one agency’s interpretation of another agency’s regula- tions because Congress had delegated authority to both to administer the program). It has likewise granted Semi- nole deference to agency interpretations that are inconsistent with interpretations adopted closer in time to the promulgation of the regulations. See, e.g., Long Island Care at 551 U.S., at Even if the scope of Seminole deference more closely matched the original-drafter justification, it would still fail. It is the text of the regulations that have the force and effect of law, not the agency’s intent. “Citizens —————— significant expansions of the administrative state, ultimately culminat- ing in the New Deal. See generally M. Keller, Regulag a New Economy: Public Policy and Economic Change in America, 1900–1933 Cite as: 575 U. S. (2015) 21 THOMAS, J., concurring in judgment arrange their affairs not on the basis of their legislators’ unexpressed intent, but on the basis of the law as it is written and promulgated.” Zuni Public School Dist. No. (SCALIA, J., disseng). Cf. Wyeth v. Levine, 555 U.S. 555, 586–587 (2009) (THOMAS, J., concurring in judgment) (nog that only “federal standards that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures”—not Congress’ “purposes and objectives”—can become the “law of the land”). “To be governed by legislated text rather than legislators’ inten- tions is what it means to be ‘a Government of laws, not of men.’ ” Zuni Public School Dist. No. at (SCALIA, J., disseng). Only the text of a regulation goes through the procedures established by Congress for agency rulemaking. And it is that text on which the public is entitled to rely. For the same reasons that we should not accord controlling weight to postenactment expressions of intent by individual Members of Congress, see Sullivan v. Finkelstein, (SCALIA, J., concurring in part), we should not accord controlling weight to expressions of intent by administrators of agencies. C A third asserted justification for Seminole defer- ence is that Congress has delegated to agencies the au- thority to interpret their own regulations. See, e.g., Mar- The theory is that, “[b]ecause applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, the power authorita- tively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” This justification fails because Congress lacks authority 22 PEREZ v. MORTGAGE BANKERS ASSN. THOMAS, J., concurring in judgment to delegate the power. As we have explained in an analo- gous context, “[t]he structure of the Constitution does not permit Congress to execute the laws; it follows that Con- gress cannot grant to an officer under its control what it does not possess.” 6 (1986). Similarly, the Constitution does not empower Congress to issue a judicially binding interpretation of the Constitution or its laws. Lacking the power itself, it can- not delegate that power to an agency. To hold otherwise would be to vitiate the separation of powers and ignore the “sense of a sharp necessity to sepa- rate the legislative from the judicial power [that] triumphed among the Framers of the new Federal Consti- tution.” 221 (1995). As this Court has explained, the “essential balance” of the Constitution is that the Legislature is “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’ [is] ‘the proper and peculiar province of the courts.’ ” (citation omitted; third brackets added). Although the Constitution imposes a duty on all three branches to interpret the laws within their own spheres, the power to create legally binding interpretations rests with the Judi- ciary. See D A final proposed justification for Seminole defer- ence is that too much oversight of administrative matters would imperil the “independence and esteem” of judges. See, e.g., Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses of Charles Evans Hughes, 1906–1916, p. 185 (2d ed. 1916). The argument goes that questions of administration are those which “lie close to the public impatience,” and thus the courts’ resolution of such questions could Cite as: 575 U. S. (2015) 23 THOMAS, J., concurring in judgment “expose them to the fire of public criticism,” But this argument, which boils down to a policy judg- ment of questionable validity, cannot vitiate the constitu- tional allocation of powers. The Judicial Branch is sepa- rate from the political branches for a reason: It has the obligation to apply the law to cases and controversies that come before it, and concerns about the popular esteem of individual judges—or even the Judiciary as a whole—have no place in that analysis. Our system of Government could not long survive absent adherence to the written Constitution that formed it. * * * Although on the surface these cases require only a straightforward application of the APA, closer scruy reveals serious constitutional questions lurking beneath. I have “acknowledge[d] the importance of stare decisis to the stability of our Nation’s legal system.” “But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.” (THOMAS, J., concurring in part and concurring in judgment) (citation omitted). By my best lights, the entire line of precedent beginning with Seminole raises serious constitutional questions and should be reconsidered in an appropriate case

per_curiam

per_curiam

McClanahan v. Morauer & Hartzell, Inc.

https://www.courtlistener.com/opinion/108393/mcclanahan-v-morauer-hartzell-inc/

https://www.courtlistener.com/api/rest/v3/clusters/108393/

1971-004

Under § 33 (g) of the Longshoremen's and Harbor Workers' Compensation Act, an employer is not obligated to pay compensation to an employee who, without the employer's written approval, settles a claim against a third person for an amount less than the compensation to which the employee is entitled under the Act. 44 Stat. 1441, as amended, 33 U.S. C. § 933 (g). Certiorari was granted in this case, 402 U.S. 1008 (1971), on the assumption that it presented the question whether the consent judgment entered by the District Judge awarding petitioner damages against a third person evidenced a "compromise" subject to § 33 (g), or an award of damages "determined . . . by the independent evaluation of a trial judge," not subject to § 33 (g) under Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 467 (1968). Fuller examination of the case on oral argument discloses that the record does not adequately present that question. The writ of certiorari is therefore dismissed as improvidently granted. It is so ordered. *17 MR.

Under 33 (g) of the Longshoremen's and Harbor Workers' Compensation Act, an employer is not obligated to pay compensation to an employee who, without the employer's written approval, settles a claim against a third person for an amount less than the compensation to which the employee is entitled under the Act. as amended, 33 U.S. C. 933 (g). Certiorari was granted in this case, on the assumption that it presented the question whether the consent judgment entered by the District Judge awarding petitioner damages against a third person evidenced a "compromise" subject to 33 (g), or an award of damages "determined by the independent evaluation of a trial judge," not subject to 33 (g) under Fuller examination of the case on oral argument discloses that the record does not adequately present that question. The writ of certiorari is therefore dismissed as improvidently granted. It is so ordered. *17 MR.

Justice Ginsburg

majority

BNSF R. Co. v. Loos

https://www.courtlistener.com/opinion/4595876/bnsf-r-co-v-loos/

https://www.courtlistener.com/api/rest/v3/clusters/4595876/

Respondent Michael Loos was injured while working at petitioner BNSF Railway Company’s railyard. Loos sued BNSF under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S. C. §51 et seq., and gained a $126,212.78 jury verdict. Of that amount the jury as- cribed $30,000 to wages lost during the time Loos was unable to work. BNSF moved for an offset against the judgment. The lost wages awarded Loos, BNSF asserted, constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA), 26 U.S. C. §3201 et seq. Therefore, BNSF urged, the railway was required to with- hold a portion of the $30,000 attributable to lost wages to cover Loos’s share of RRTA taxes, which came to $3,765. The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on-the-job injury taxable “compensation” under the RRTA, 26 U.S. C. 2 BNSF R. CO. v. LOOS Opinion of the Court §3231(e)(1)? We granted review to resolve a division of opinion on the answer to that question. 584 U. S. ___ (2018). Compare Hance v. Norfolk S. R. Co., 571 F.3d 511, 523 (CA6 2009) (“compensation” includes pay for time lost); Phillips v. Chicago Central & Pacific R. Co., 853 N.W.2d 636, 650–651 (Iowa 2014) (agency reasonably interpreted “compensation” as including pay for time lost); Heckman v. Burlington N. Santa Fe R. Co., 286 Neb. 453, 463, 837 N.W.2d 532, 540 (2013) (“compensation” in- cludes pay for time lost), with 865 F.3d 1106, 1117–1118 (CA8 2017) (case below) (“compensation” does not include pay for time lost); Mickey v. BNSF R. Co., 437 S.W.3d 207, 218 (Mo. 2014) (“compensation” does not include FELA damages for lost wages). We now hold that an award compensating for lost wages is subject to taxation under the RRTA. I In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The system provides generous pensions as well as benefits “correspon[ding] . . . to those an employee would expect to receive were he covered by the Social Security Act.” Hisquierdo v. His- quierdo, 439 U.S. 572, 575 (1979). Two statutes operate in concert to ensure that retired railroad workers receive their allotted pensions and bene- fits. The first, the RRTA, funds the program by imposing a payroll tax on both railroads and their employees. The RRTA refers to the railroad’s contribution as an “excise” tax, 26 U.S. C. §3221, and describes the employee’s share as an “income” tax, §3201. Congress assigned to the In- ternal Revenue Service (IRS) responsibility for collecting both taxes. §§3501, 7801.1 The second statute, the Rail- —————— 1 The railroad remits both taxes to the IRS. As to the income tax, the Cite as: 586 U. S. ____ (2019) 3 Opinion of the Court road Retirement Act (RRA), 50 Stat. 307, as restated and amended, 45 U.S. C. §231 et seq., entitles railroad work- ers to various benefits and prescribes eligibility require- ments. The RRA is administered by the Railroad Retire- ment Board. See §231f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U.S. C. §§3201, 3221; 45 U.S. C. §231b. The RRTA and RRA separately define “compensation,” but both statutes state that the term means “any form of money remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. §3231(e)(1); 45 U.S. C. §231(h)(1). This language has remained basically unchanged since the RRTA’s enactment in 1937. See Carriers Taxing Act of 1937 (1937 RRTA), §1(e), 50 Stat. 436 (defining “compen- sation” as “any form of money remuneration earned by an individual for services rendered as an employee”). The RRTA excludes from “compensation” certain types of sick pay and disability pay. See 26 U.S. C. §3231(e)(1), (4)(A). The IRS’s reading of the word “compensation” as it appears in the RRTA has remained constant. One year after the RRTA’s adoption, the IRS stated that “compensa- tion” is not limited to pay for active service but reaches, as well, pay for periods of absence. See 26 CFR §410.5 (1938). This understanding has governed for more than eight decades. As restated in the current IRS regulations, “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identi- fiable period during which the employee is absent from the active service of the employer.” §31.3231(e)–1(a)(3) (2017). —————— railroad deducts the amount owed by the employee from her earnings and then forwards that amount to the IRS. See Tr. of Oral Arg. 22–23. See also 26 U.S. C. §3402(a)(1) (employers must “deduct and withhold” income taxes from earnings). 4 BNSF R. CO. v. LOOS Opinion of the Court In 1994, the IRS added, specifically, that “compensation” includes “pay for time lost.” §31.3231(e)–1(a)(4); see 59 Fed. Reg. 66188 (1994). Congress created both the railroad retirement system and the Social Security system during the Great Depres- sion primarily to ensure the financial security of members of the workforce when they reach old age. See Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 1); Helvering v. Davis, 301 U.S. 619, 641 (1937). Given the similarities in timing and purpose of the two programs, it is hardly surprising that their statutory foundations mirror each other. Regarding Social Security, the Federal Insurance Contributions Act (FICA), 26 U.S. C. §3101 et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), 49 Stat. 620, as amended, 42 U.S. C. §301 et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” See Davis, 301 U.S., at 635–636. Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compen- sation.” “Wages” under the FICA and the SSA mean “all remuneration for employment,” and “employment,” in turn, means “any service, of whatever nature, performed . . . by an employee.” 26 U.S. C. §3121(a)–(b) (FICA); see 42 U.S. C. §§409(a), 410(a) (SSA). Reading these pre- scriptions together, the term “wages” encompasses “all remuneration” for “any service, of whatever nature, per- formed . . . by an employee.” Ibid. II A To determine whether RRTA-qualifying “compensation” includes an award of damages for lost wages, we begin Cite as: 586 U. S. ____ (2019) 5 Opinion of the Court with the statutory text.2 The RRTA defines “compensa- tion” as “remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. §3231(e)(1). This definition, as just noted, is materially indistinguishable from the FICA’s definition of “wages” to include “remuner- ation” for “any service, of whatever nature, performed . . . by an employee.” §3121. Given the textual similarity between the definitions of “compensation” for railroad retirement purposes and “wages” for Social Security purposes, our decisions on the meaning of “wages” in Social Security Bd. v. Nierotko, 327 U.S. 358 (1946), and United States v. Quality Stores, Inc., 572 U.S. 141 (2014), inform our comprehension of the RRTA term “compensation.” In Nierotko, the National Labor Relations Board found that an employee had been “wrongfully discharged for union activity” and awarded him backpay. 327 U.S., at 359. The Social Security Board refused to credit the backpay award in calculating the employee’s benefits. Id., at 365–366. In the Board’s view, “wages” covered only pay for active service. Ibid. We disagreed. Emphasizing that the phrase “any service . . . performed” denotes “breadth of coverage,” we held that “wages” means remuneration for “the entire employer- employee relationship”; in other words, “wages” embraced pay for active service plus pay received for periods of absence from active service. Id., at 366. Backpay, we —————— 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure on injured workers to settle their claims. Post, at 3. Contrast with the dissent’s conjecture, BNSF’s entirely plausible account of a railroad’s stake in this dispute. Because the RRA credits lost wages toward an employee’s benefits, see 45 U.S. C. §231(h)(1), BNSF posits that immunizing those payments from RRTA taxes would expose the system to “a long-term risk of insolvency.” Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14. 6 BNSF R. CO. v. LOOS Opinion of the Court reasoned, counts as “wages” because it compensates for “the loss of wages which the employee suffered from the employer’s wrong.” Id., at 364. In Quality Stores, we again trained on the meaning of “wages,” reiterating that “Congress chose to define wages . . . broadly.” 572 U.S., at 146 (internal quotation marks omitted). Guided by Nierotko, Quality Stores held that severance payments qualified as “wages” taxable under the FICA. “[C]ommon sense,” we observed, “dictates that employees receive th[ose] payments ‘for employment.’ ” 572 U.S., at 146. Severance payments, the Court spelled out, “are made to employees only,” “are made in considera- tion for employment,” and are calculated “according to the function and seniority of the [terminated] employee.” Id., at 146–147. In line with Nierotko, Quality Stores, and the IRS’s long held construction, we hold that “compensation” under the RRTA encompasses not simply pay for active service but, in addition, pay for periods of absence from active ser- vice—provided that the remuneration in question stems from the “employer-employee relationship.” Nierotko, 327 U.S., at 366. B Damages awarded under the FELA for lost wages fit comfortably within this definition. The FELA “makes railroads liable in money damages to their employees for on-the-job injuries.” BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___ (2017) (slip op., at 1); see 45 U.S. C. §51. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for, inter alia, working time lost due to the employer’s wrongdoing. FELA dam- ages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully Cite as: 586 U. S. ____ (2019) 7 Opinion of the Court separated from his job.” Nierotko, 327 U.S., at 364. Just as Nierotko held that backpay falls within the definition of “wages,” ibid., we conclude that FELA damages for lost wages qualify as “compensation” and are therefore taxable under the RRTA. III A The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for “services that an employee actually renders,” in other words, pay for active service. Consequently, the court held that “compensation” within the RRTA’s compass did not reach pay for periods of ab- sence. 865 F.3d, at 1117. In so ruling, the Court of Ap- peals attempted to distinguish Nierotko and Quality Stores. The Social Security decisions, the court said, were inapposite because the FICA “taxes payment for ‘employ- ment,’ ” whereas the RRTA “tax[es] payment for ‘services.’ ” 865 F.3d, at 1117. As noted, however, supra, at 3–4, the FICA defines “employment” in language resembling the RRTA in all relevant respects. Compare 26 U.S. C. §3121(b) (FICA) (“any service, of whatever nature, per- formed . . . by an employee”) with §3231(e)(1) (RRTA) (“services rendered as an employee”). Construing RRTA “compensation” as less embracive than “wages” covered by the FICA would introduce an unwarranted disparity between terms Congress appeared to regard as equiva- lents. The reasoning of Nierotko and Quality Stores, as we see it, resists the Eighth Circuit’s swift writeoff.3 Nierotko and Quality Stores apart, we would in any event conclude that the RRTA term “compensation” covers —————— 3 The dissent’s reduction of Nierotko’s significance fares no better. Nierotko, the dissent urges, is distinguishable because it involved “a different factual context.” Post, at 7. But as just explained, supra, at 6–7, the facts in Nierotko resemble those here in all material respects. 8 BNSF R. CO. v. LOOS Opinion of the Court pay for time lost. Restricting “compensation” to pay for active service, the Court of Appeals relied on statutory history and, in particular, the eventual deletion of two references to pay for time lost contained in early rendi- tions of the RRTA. See also post, at 6–7 (presenting the Eighth Circuit’s statutory history argument). To under- stand the Eighth Circuit’s position, and why, in our judg- ment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.” Congress instructed: “The term ‘compensation’ means any form of money remunera- tion earned by an individual for services rendered as an employee . . . , including remuneration paid for time lost as an employee, but [such] remuneration . . . shall be deemed earned in the month in which such time is lost.” 1937 RRTA, §1(e), 50 Stat. 436 (emphasis added). In 1946, Congress clarified that the phrase “pa[y] for time lost” meant payment for “an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Act of July 31, 1946 (1946 Act), §2, 60 Stat. 722. Thus, originally, the RRTA stated that “compensation” included pay for time lost, and the language added in 1946 presupposed the same. In subsequent amendments, how- ever, Congress removed the references to pay for time lost. First, in 1975, Congress made “compensation” taxable when paid rather than when earned. Congress simultane- ously removed the 1937 language that both referred to pay for time lost and specified when such pay should be “deemed earned.” So amended, the definitional sentence, in its current form, reads: “The term ‘compensation’ means any form of money remuneration paid to an individual for services rendered as an employee . . . .” Act of Aug. 9, Cite as: 586 U. S. ____ (2019) 9 Opinion of the Court 1975 (1975 Act), §204, 89 Stat. 466 (emphasis added). Second, in 1983, Congress shifted the wage base for RRTA taxes from monthly “compensation” to annual “compensation.” See Railroad Retirement Solvency Act of 1983 (1983 Act), §225, 97 Stat. 424–425. Because the “monthly wage bases for railroad retirement taxes [were being] changed to annual amounts,” the House Report explained, the RRTA required “[s]everal technical and conforming amendments.” H. R. Rep. No. 98–30, pt. 2, p. 29 (1983). In a section of the 1983 Act titled “Technical Amendments,” Congress struck the subsection containing, among other provisions, the 1946 Act’s clarification of pay for time lost. 1983 Act, §225, 97 Stat. 424–425. In lieu of the deleted subsection, Congress inserted detailed instruc- tions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time lost. 865 F.3d, at 1119; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration . . . for services rendered as an employee.” That Act also left intact the 1946 Act’s description of pay for time lost. Continuing after the 1975 Act, then, such pay remained RRTA-taxable “compensation.” The 1983 Act, as billed by Congress, effected only “[t]echnical [a]mendments” relating to the change from monthly to annual computation of “compen- sation.” Concerning the 1975 and 1983 alterations, the IRS concluded that Congress revealed no “inten[tion] to exclude payments for time lost from compensation.” 59 Fed. Reg. 66188 (1994). We credit the IRS reading. It would be passing strange for Congress to restrict substan- tially what counts as “compensation” in a manner so oblique. Moreover, the text of the RRTA continues to indicate that “compensation” encompasses pay for time lost. The RRTA excludes from “compensation” a limited subset of 10 BNSF R. CO. v. LOOS Opinion of the Court payments for time lost, notably certain types of sick pay and disability pay. See 26 U.S. C. §3231(e)(1), (4). These enumerated exclusions would be entirely superfluous if, as the Court of Appeals held, the RRTA broadly excludes from “compensation” any and all pay received for time lost. In justification of its confinement of RRTA-taxable receipts to pay for active service, the Court of Appeals also referred to the RRA. The RRA, like the RRTA as enacted in 1937, states that “compensation” “includ[es] remunera- tion paid for time lost as an employee” and specifies that such pay “shall be deemed earned in the month in which such time is lost.” 45 U.S. C. §231(h)(1). Pointing to the discrepancy between the RRA and the amended RRTA, which no longer contains the above-quoted language, the Court of Appeals concluded that Congress intended the RRA, but not the RRTA, to include pay for time lost. Accord post, at 7. Although “ ‘[w]e usually presume differ- ences in language . . . convey differences in meaning,’ ” Wisconsin Central, 585 U. S., at ___ (slip op., at 4), Con- gress’ failure to reconcile the RRA and the amended RRTA is inconsequential. As just explained, the RRTA’s pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ inter- pretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration . . . for services rendered” means the “package of benefits” an employer pays “to retain the employee.” Brief for Respondent 37; post, at 3–4. He therefore agrees with BNSF that benefits like sick pay and vacation pay are taxable “compensation.” He contends, however, that FELA damages for lost wages are of a different order. They are not part of an employee’s “package of benefits,” he observes, and therefore should Cite as: 586 U. S. ____ (2019) 11 Opinion of the Court not count as “compensation.” Such damages, Loos urges, “compensate for an injury” rather than for services ren- dered. Brief for Respondent 20; post, at 3–4. Loos argues in the alternative that even if voluntary settlements qualify as “compensation,” “involuntary payment[s]” in the form of damages do not. Brief for Respondent 33. Our decision in Nierotko undermines Loos’s argument that, unlike sick pay and vacation pay, payments “com- pensat[ing] for an injury,” Brief for Respondent 20, are not taxable under the RRTA. We held in Nierotko that an award of backpay compensating an employee for his wrongful discharge ranked as “wages” under the SSA. That was so, we explained, because the backpay there awarded to the employee redressed “the loss of wages” occasioned by “the employer’s wrong.” 327 U.S., at 364; see supra, at 5. Applying that reasoning here, there should be no dispositive difference between a payment voluntarily made and one required by law.4 Nor does United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001), aid Loos’s argument, repeated by the dissent. See post, at 8. Indeed, Cleveland Indians reasserted Nierotko’s holding that “backpay for a time in —————— 4 The dissent, building on Loos’s argument, tenders an inapt analogy between passengers and employees. If BNSF were ordered to pay damages for lost wages to an injured passenger, the dissent asserts, one would not say the passenger had been compensated “for services rendered.” There is no reason, the dissent concludes, to “reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers.” Post, at 5. Under the RRTA, however, this distinction is of course critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employ- ment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they are paid only if the injured person previously “rendered [services] as an employee,” 26 U.S. C. §3231(e)(1), and, indeed, was working for the railroad when the injury occurred, see 45 U.S. C. §51. 12 BNSF R. CO. v. LOOS Opinion of the Court which the employee was not on the job” counts as pay for services, and therefore ranks as wages. 532 U.S., at 210. Cleveland Indians then took up a discrete, “secondary issue” Nierotko presented, one not in contention here, i.e., whether for taxation purposes backpay is allocable to the tax period when paid rather than an earlier time-earned period. 532 U.S., at 211, 213–214, 219–220. Moreover, Quality Stores, which postdated Cleveland Indians, left no doubt that what qualifies under Nierotko as “wages” for benefit purposes also qualifies as such for taxation pur- poses. 572 U.S., at 146–147. C Loos presses a final reason why he should not owe RRTA taxes on his lost wages award. Loos argues, and the District Court held, that the RRTA’s tax on employees does not apply to personal injury damages. He observes that the RRTA taxes “the income of each employee.” 26 U.S. C. §3201(a)–(b) (emphasis added). He then cites a provision of the Internal Revenue Code, 26 U.S. C. §104(a)(2). This provision exempts “damages . . . received . . . on account of personal physical injuries” from federal income taxation by excluding such damages from “gross income.” Loos urges that the exclusion of personal injury damages from “gross income” should carry over to the RRTA’s tax on the “income” of railroad workers, §3201(a)–(b). The argument is unconvincing. As the Government points out, the District Court, echoed by Loos, conflated “the distinct concepts of ‘gross income,’ [a prime compo- nent of] the tax base on which income tax is collected, and ‘compensation,’ the separately defined category of pay- ments that are taxable under the RRTA.” Brief for United States as Amicus Curiae 15. Blending tax bases that Congress kept discrete, the District Court and Loos proffer a scheme in which employees pay no tax on damages Cite as: 586 U. S. ____ (2019) 13 Opinion of the Court compensating for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their re- tirement benefits. That scheme, however, is not plausibly attributable to Congress. For federal income tax purposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U.S. C. §61; see §§1, 63 (imposing a tax on “taxable income,” de- fined as “gross income minus . . . deductions”). Congress provided detailed prescriptions on the scope of “gross income,” excluding from its reach numerous items, among them, personal injury damages. See §§101–140. Conspic- uously absent from the RRTA, however, is any reference to “gross income.” As employed in the RRTA, the word “in- come” merely distinguishes the tax on the employee, an “income . . . tax,” §3201, from the matching tax on the railroad, called an “excise tax.” §§3201, 3221. See also 1937 RRTA, §§2–3 (establishing an “income tax on em- ployees” and an “excise tax on employers”); S. Rep. No. 818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA imposes an “income tax on employees” and an “excise tax on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 6 (1937) (same). Congress, we reiterate, specified not “gross income” but employee “compensation” as the tax base for the RRTA’s income and excise taxes. §§3201, 3221. Congress then excepted certain payments from the calculation of “com- pensation.” See §3231(e); supra, at 9. Congress adopted by cross-reference particular Internal Revenue Code ex- clusions from “gross income,” thereby carving out those specified items from RRTA coverage. See §3231(e)(5)–(6), (9)–(11). Tellingly, Congress did not adopt for RRTA purposes the exclusion of personal injury damages from federal income taxation set out in §104(a)(2). We note, furthermore, that if RRTA taxes were based on “income” or “gross income” rather than “compensation,” the RRTA 14 BNSF R. CO. v. LOOS Opinion of the Court tax base would sweep in nonrailroad income, including, for example, dividends, interest accruals, even lottery winnings. Shifting from “compensation” to “income” as the RRTA tax base would thus saddle railroad workers with more RRTA taxes. Given the multiple flaws in Loos’s last ditch argument, we conclude that §104(a)(2) does not exempt FELA dam- ages from the RRTA’s income and excise taxes. * * * In harmony with this Court’s decisions in Nierotko and Quality Stores, we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for periods of absence from active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the payment is remitted to the recipient because of his status as a service-rendering employee. See 26 U.S. C. §3231(e)(1); 45 U.S. C. §231(h)(1). For the reasons stated, FELA damages for lost wages qualify as RRTA-taxable “compensation.” The judgment of the Court of Appeals for the Eighth Circuit is accordingly reversed, and the case is remanded for proceedings con- sistent with this opinion. It is so ordered. Cite as: 586 U. S. ____ (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–1042 _________________ BNSF RAILWAY COMPANY, PETITIONER v. MICHAEL D.

Respondent Michael Loos was injured while working at petitioner BNSF Railway Company’s railyard. Loos sued BNSF under the Federal Employers’ Liability Act (FELA), as amended, 45 U.S. C. et seq., and gained a $126,212.78 jury verdict. Of that amount the jury as- cribed $30,000 to wages lost during the time Loos was unable to work. BNSF moved for an offset against the judgment. The lost wages awarded Loos, BNSF asserted, constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA), 26 U.S. C. et seq. Therefore, BNSF urged, the railway was required to with- hold a portion of the $30,000 attributable to lost wages to cover Loos’s share of RRTA taxes, which came to $3,765. The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on-the-job injury taxable “compensation” under the RRTA, 26 U.S. C. 2 BNSF R. CO. v. LOOS Opinion of the Court We granted review to resolve a division of opinion on the answer to that question. 584 U. S. (2018). Compare Hance v. Norfolk S. R. Co., 571 F.3d 511, 523 (CA6 2009) (“compensation” includes pay for time lost); Phillips v. Chicago Central & Pacific R. Co., 853 N.W.2d 636, 650–651 (agency reasonably interpreted “compensation” as including pay for time lost); 463, (“compensation” in- cludes pay for time lost), with 1117–1118 (CA8 2017) (case below) (“compensation” does not include pay for time lost); Mickey v. BNSF R. Co., 437 S.W.3d 207, 218 (“compensation” does not include FELA damages for lost wages). We now hold that an award compensating for lost wages is subject to taxation under the RRTA. I In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The system provides generous pensions as well as benefits “correspon[ding] to those an employee would expect to receive were he covered by the Social Security Act.” Two statutes operate in concert to ensure that retired railroad workers receive their allotted pensions and bene- fits. The first, the RRTA, funds the program by imposing a payroll tax on both railroads and their employees. The RRTA refers to the railroad’s contribution as an “excise” tax, 26 U.S. C. and describes the employee’s share as an “income” tax, Congress assigned to the In- ternal Revenue Service (IRS) responsibility for collecting both taxes. 7801.1 The second statute, the Rail- —————— 1 The railroad remits both taxes to the IRS. As to the income tax, the Cite as: 586 U. S. (2019) 3 Opinion of the Court road Retirement Act (RRA), as restated and amended, 45 U.S. C. et seq., entitles railroad work- ers to various benefits and prescribes eligibility require- ments. The RRA is administered by the Railroad Retire- ment Board. See f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U.S. C. §, 3221; 45 U.S. C. b. The RRTA and RRA separately define “compensation,” but both statutes state that the term means “any form of money remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. 45 U.S. C. (h)(1). This language has remained basically unchanged since the RRTA’s enactment in 1937. See Carriers Taxing Act of 1937 (1937 RRTA), (defining “compen- sation” as “any form of money remuneration earned by an individual for services rendered as an employee”). The RRTA excludes from “compensation” certain types of sick pay and disability pay. See 26 U.S. C. (4)(A). The IRS’s reading of the word “compensation” as it appears in the RRTA has remained constant. One year after the RRTA’s adoption, the IRS stated that “compensa- tion” is not limited to pay for active service but reaches, as well, pay for periods of ab See (1938). This understanding has governed for more than eight decades. As restated in the current IRS regulations, “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identi- fiable period during which the employee is absent from the active service of the employer.” (2017). —————— railroad deducts the amount owed by the employee from her earnings and then forwards that amount to the IRS. See Tr. of Oral Arg. 22–23. See also 26 U.S. C. (employers must “deduct and withhold” income taxes from earnings). 4 BNSF R. CO. v. LOOS Opinion of the Court In 1994, the IRS added, specifically, that “compensation” includes “pay for time ” see 59 Fed. Reg. 66188 (1994). Congress created both the railroad retirement system and the Social Security system during the Great Depres- sion primarily to ensure the financial security of members of the workforce when they reach old age. See Wisconsin Central Ltd. v. United States, 585 U. S. (2018) (slip op., at 1); (1937). Given the similarities in timing and purpose of the two programs, it is hardly surprising that their statutory foundations mirror each other. Regarding Social Security, the Federal Insurance Contributions Act (FICA), 26 U.S. C. et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), as amended, 42 U.S. C. et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” See –636. Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compen- sation.” “Wages” under the FICA and the SSA mean “all remuneration for employment,” and “employment,” in turn, means “any service, of whatever nature, performed by an employee.” 26 U.S. C. (FICA); see 42 U.S. C. 410(a) (SSA). Reading these pre- scriptions together, the term “wages” encompasses “all remuneration” for “any service, of whatever nature, per- formed by an employee.” II A To determine whether RRTA-qualifying “compensation” includes an award of damages for lost wages, we begin Cite as: 586 U. S. (2019) 5 Opinion of the Court with the statutory text.2 The RRTA defines “compensa- tion” as “remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. This definition, as just noted, is materially indistinguishable from the FICA’s definition of “wages” to include “remuner- ation” for “any service, of whatever nature, performed by an employee.” Given the textual similarity between the definitions of “compensation” for railroad retirement purposes and “wages” for Social Security purposes, our decisions on the meaning of “wages” in Social Security Bd. v. 327 U.S. 358 (1946), and United inform our comprehension of the RRTA term “compensation.” In the National Labor Relations Board found that an employee had been “wrongfully discharged for union activity” and awarded him The Social Security Board refused to credit the backpay award in calculating the employee’s benefits. at 365–366. In the Board’s view, “wages” covered only pay for active service. We disagreed. Emphasizing that the phrase “any service performed” denotes “breadth of coverage,” we held that “wages” means remuneration for “the entire employer- employee relationship”; in other words, “wages” embraced pay for active service plus pay received for periods of absence from active service. Backpay, we —————— 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure on injured workers to settle their claims. Post, at 3. Contrast with the dissent’s conjecture, BNSF’s entirely plausible account of a railroad’s stake in this dispute. Because the RRA credits lost wages toward an employee’s benefits, see 45 U.S. C. (h)(1), BNSF posits that immunizing those payments from RRTA taxes would expose the system to “a long-term risk of insolvency.” Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14. 6 BNSF R. CO. v. LOOS Opinion of the Court reasoned, counts as “wages” because it compensates for “the loss of wages which the employee suffered from the employer’s wrong.” In Quality Stores, we again trained on the meaning of “wages,” reiterating that “Congress chose to define wages broadly.” (internal quotation marks omitted). Guided by Quality Stores held that severance payments qualified as “wages” taxable under the FICA. “[C]ommon sense,” we observed, “dictates that employees receive th[ose] payments ‘for employment.’ ” Severance payments, the Court spelled out, “are made to employees only,” “are made in considera- tion for employment,” and are calculated “according to the function and seniority of the [terminated] employee.” at 146–147. In line with Quality Stores, and the IRS’s long held construction, we hold that “compensation” under the RRTA encompasses not simply pay for active service but, in addition, pay for periods of absence from active ser- vice—provided that the remuneration in question stems from the “employer-employee relationship.” 327 U.S., B Damages awarded under the FELA for lost wages fit comfortably within this definition. The FELA “makes railroads liable in money damages to their employees for on-the-job injuries.” BNSF R. Co. v. Tyrrell, 581 U. S. (2017) (slip op., at 1); see 45 U.S. C. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for, inter alia, working time lost due to the employer’s wrongdoing. FELA dam- ages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully Cite as: 586 U. S. (2019) 7 Opinion of the Court separated from his job.” 327 U.S., Just as held that backpay falls within the definition of “wages,” ibid., we conclude that FELA damages for lost wages qualify as “compensation” and are therefore taxable under the RRTA. III A The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for “services that an employee actually renders,” in other words, pay for active service. Consequently, the court held that “compensation” within the RRTA’s compass did not reach pay for periods of ab- In so ruling, the Court of Ap- peals attempted to distinguish and Quality Stores. The Social Security decisions, the court said, were inapposite because the FICA “taxes payment for ‘employ- ment,’ ” whereas the RRTA “tax[es] payment for ‘services.’ ” As noted, at 3–4, the FICA defines “employment” in language resembling the RRTA in all relevant respects. Compare 26 U.S. C. (FICA) (“any service, of whatever nature, per- formed by an employee”) with (RRTA) (“services rendered as an employee”). Construing RRTA “compensation” as less embracive than “wages” covered by the FICA would introduce an unwarranted disparity between terms Congress appeared to regard as equiva- lents. The reasoning of and Quality Stores, as we see it, resists the Eighth Circuit’s swift writeoff.3 and Quality Stores apart, we would in any event conclude that the RRTA term “compensation” covers —————— 3 The dissent’s reduction of ’s significance fares no better. the dissent urges, is distinguishable because it involved “a different factual context.” Post, at 7. But as just at 6–7, the facts in resemble those here in all material respects. 8 BNSF R. CO. v. LOOS Opinion of the Court pay for time Restricting “compensation” to pay for active service, the Court of Appeals relied on statutory history and, in particular, the eventual deletion of two references to pay for time lost contained in early rendi- tions of the RRTA. See also post, at 6–7 (presenting the Eighth Circuit’s statutory history argument). To under- stand the Eighth Circuit’s position, and why, in our judg- ment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.” Congress instructed: “The term ‘compensation’ means any form of money remunera- tion earned by an individual for services rendered as an employee including remuneration paid for time lost as an employee, but [such] remuneration shall be deemed earned in the month in which such time is ” 1937 RRTA, In 1946, Congress clarified that the phrase “pa[y] for time lost” meant payment for “an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Act of July 31, 1946 (1946 Act), Thus, originally, the RRTA stated that “compensation” included pay for time lost, and the language added in 1946 presupposed the same. In subsequent amendments, how- ever, Congress removed the references to pay for time First, in 1975, Congress made “compensation” taxable when paid rather than when earned. Congress simultane- ously removed the 1937 language that both referred to pay for time lost and specified when such pay should be “deemed earned.” So amended, the definitional sentence, in its current form, reads: “The term ‘compensation’ means any form of money remuneration paid to an individual for services rendered as an employee” Act of Aug. 9, Cite as: 586 U. S. (2019) 9 Opinion of the Court 1975 (1975 Act), Second, in 1983, Congress shifted the wage base for RRTA taxes from monthly “compensation” to annual “compensation.” See Railroad Retirement Solvency Act of 1983 (1983 Act), –425. Because the “monthly wage bases for railroad retirement taxes [were being] changed to annual amounts,” the House Report the RRTA required “[s]everal technical and conforming amendments.” H. R. Rep. No. 98–30, pt. 2, p. 29 (1983). In a section of the 1983 Act titled “Technical Amendments,” Congress struck the subsection containing, among other provisions, the 1946 Act’s clarification of pay for time 1983 Act, –425. In lieu of the deleted subsection, Congress inserted detailed instruc- tions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time ; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration for services rendered as an employee.” That Act also left intact the 1946 Act’s description of pay for time Continuing after the 1975 Act, then, such pay remained RRTA-taxable “compensation.” The 1983 Act, as billed by Congress, effected only “[t]echnical [a]mendments” relating to the change from monthly to annual computation of “compen- sation.” Concerning the 1975 and 1983 alterations, the IRS concluded that Congress revealed no “inten[tion] to exclude payments for time lost from compensation.” 59 Fed. Reg. 66188 (1994). We credit the IRS reading. It would be passing strange for Congress to restrict substan- tially what counts as “compensation” in a manner so oblique. Moreover, the text of the RRTA continues to indicate that “compensation” encompasses pay for time The RRTA excludes from “compensation” a limited subset of 10 BNSF R. CO. v. LOOS Opinion of the Court payments for time lost, notably certain types of sick pay and disability pay. See 26 U.S. C. (4). These enumerated exclusions would be entirely superfluous if, as the Court of Appeals held, the RRTA broadly excludes from “compensation” any and all pay received for time In justification of its confinement of RRTA-taxable receipts to pay for active service, the Court of Appeals also referred to the RRA. The RRA, like the RRTA as enacted in 1937, states that “compensation” “includ[es] remunera- tion paid for time lost as an employee” and specifies that such pay “shall be deemed earned in the month in which such time is ” 45 U.S. C. (h)(1). Pointing to the discrepancy between the RRA and the amended RRTA, which no longer contains the above-quoted language, the Court of Appeals concluded that Congress intended the RRA, but not the RRTA, to include pay for time Accord post, at 7. Although “ ‘[w]e usually presume differ- ences in language convey differences in meaning,’ ” Wisconsin Central, 585 U. S., at (slip op., at 4), Con- gress’ failure to reconcile the RRA and the amended RRTA is inconsequential. As just the RRTA’s pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ inter- pretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration for services rendered” means the “package of benefits” an employer pays “to retain the employee.” Brief for Respondent 37; post, at 3–4. He therefore agrees with BNSF that benefits like sick pay and vacation pay are taxable “compensation.” He contends, that FELA damages for lost wages are of a different order. They are not part of an employee’s “package of benefits,” he observes, and therefore should Cite as: 586 U. S. (2019) 11 Opinion of the Court not count as “compensation.” Such damages, Loos urges, “compensate for an injury” rather than for services ren- dered. Brief for Respondent 20; post, at 3–4. Loos argues in the alternative that even if voluntary settlements qualify as “compensation,” “involuntary payment[s]” in the form of damages do not. Brief for Respondent 33. Our decision in undermines Loos’s argument that, unlike sick pay and vacation pay, payments “com- pensat[ing] for an injury,” Brief for Respondent 20, are not taxable under the RRTA. We held in that an award of backpay compensating an employee for his wrongful discharge ranked as “wages” under the SSA. That was so, we because the backpay there awarded to the employee redressed “the loss of wages” occasioned by “the employer’s wrong.” 327 U.S., ; see Applying that reasoning here, there should be no dispositive difference between a payment voluntarily made and one required by law.4 Nor does United aid Loos’s argument, repeated by the dissent. See post, at 8. Indeed, Cleveland Indians reasserted ’s holding that “backpay for a time in —————— 4 The dissent, building on Loos’s argument, tenders an inapt analogy between passengers and employees. If BNSF were ordered to pay damages for lost wages to an injured passenger, the dissent asserts, one would not say the passenger had been compensated “for services rendered.” There is no reason, the dissent concludes, to “reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers.” Post, Under the RRTA, this distinction is of course critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employ- ment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they are paid only if the injured person previously “rendered [services] as an employee,” 26 U.S. C. and, indeed, was working for the railroad when the injury occurred, see 45 U.S. C. 12 BNSF R. CO. v. LOOS Opinion of the Court which the employee was not on the job” counts as pay for services, and therefore ranks as Cleveland Indians then took up a discrete, “secondary issue” presented, one not in contention here, i.e., whether for taxation purposes backpay is allocable to the tax period when paid rather than an earlier time-earned 213–214, 219–220. Moreover, Quality Stores, which postdated Cleveland Indians, left no doubt that what qualifies under as “wages” for benefit purposes also qualifies as such for taxation pur- –147. C Loos presses a final reason why he should not owe RRTA taxes on his lost wages award. Loos argues, and the District Court held, that the RRTA’s tax on employees does not apply to personal injury damages. He observes that the RRTA taxes “the income of each employee.” 26 U.S. C. (a)–(b) He then cites a provision of the Internal Revenue Code, 26 U.S. C. This provision exempts “damages received on account of personal physical injuries” from federal income taxation by excluding such damages from “gross income.” Loos urges that the exclusion of personal injury damages from “gross income” should carry over to the RRTA’s tax on the “income” of railroad workers, (a)–(b). The argument is unconvincing. As the Government points out, the District Court, echoed by Loos, conflated “the distinct concepts of ‘gross income,’ [a prime compo- nent of] the tax base on which income tax is collected, and ‘compensation,’ the separately defined category of pay- ments that are taxable under the RRTA.” Brief for United States as Amicus Curiae 15. Blending tax bases that Congress kept discrete, the District Court and Loos proffer a scheme in which employees pay no tax on damages Cite as: 586 U. S. (2019) 13 Opinion of the Court compensating for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their re- tirement benefits. That scheme, is not plausibly attributable to Congress. For federal income tax purposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U.S. C. see 63 (imposing a tax on “taxable income,” de- fined as “gross income minus deductions”). Congress provided detailed prescriptions on the scope of “gross income,” excluding from its reach numerous items, among them, personal injury damages. See Conspic- uously absent from the RRTA, is any reference to “gross income.” As employed in the RRTA, the word “in- come” merely distinguishes the tax on the employee, an “income tax,” from the matching tax on the railroad, called an “excise tax.” §, 3221. See also 1937 RRTA, (establishing an “income tax on em- ployees” and an “excise tax on employers”); S. Rep. No. 818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA imposes an “income tax on employees” and an “excise tax on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 6 (1937) (same). Congress, we reiterate, specified not “gross income” but employee “compensation” as the tax base for the RRTA’s income and excise taxes. §, 3221. Congress then excepted certain payments from the calculation of “com- pensation.” See Congress adopted by cross-reference particular Internal Revenue Code ex- clusions from “gross income,” thereby carving out those specified items from RRTA coverage. See (9)–(11). Tellingly, Congress did not adopt for RRTA purposes the exclusion of personal injury damages from federal income taxation set out in We note, furthermore, that if RRTA taxes were based on “income” or “gross income” rather than “compensation,” the RRTA 14 BNSF R. CO. v. LOOS Opinion of the Court tax base would sweep in nonrailroad income, including, for example, dividends, interest accruals, even lottery winnings. Shifting from “compensation” to “income” as the RRTA tax base would thus saddle railroad workers with more RRTA taxes. Given the multiple flaws in Loos’s last ditch argument, we conclude that does not exempt FELA dam- ages from the RRTA’s income and excise taxes. * * * In harmony with this Court’s decisions in and Quality Stores, we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for periods of absence from active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the payment is remitted to the recipient because of his status as a service-rendering employee. See 26 U.S. C. 45 U.S. C. (h)(1). For the reasons stated, FELA damages for lost wages qualify as RRTA-taxable “compensation.” The judgment of the Court of Appeals for the Eighth Circuit is accordingly reversed, and the case is remanded for proceedings con- sistent with this opinion. It is so ordered. Cite as: 586 U. S. (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–1042 BNSF RAILWAY COMPANY, PETITIONER v. MICHAEL D.

Justice Brennan

majority

Gooding v. Wilson

https://www.courtlistener.com/opinion/108492/gooding-v-wilson/

https://www.courtlistener.com/api/rest/v3/clusters/108492/

1971-082

Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code *519 Ann. § 26-6303, which provides: "Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor." Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that § 26-6303 was facially unconstitutional was ripe for decision.[1] 303 F. Supp. 952 (1969). On the merits *520 of that question, the District Court, in disagreement with the Georgia Supreme Court, held that § 26-6303, on its face, was unconstitutionally vague and broad and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. 431 F.2d 855 (1970). We noted probable jurisdiction of the State's appeal, 403 U.S. 930 (1971). We affirm. Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, 403 U.S. 15, 18-22 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971). It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe *521 speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," Dombrowski v. Pfister, 380 U.S. 479, 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," id., at 486; see also Baggett v. Bullitt, 377 U.S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971); id., at 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U.S. 17, 21-22 (1960); NAACP v. Button, 371 U.S. 415, 433 (1963). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. "Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." Coates v. City of Cincinnati, supra, at 619-620 (opinion of WHITE, J.) (citation omitted). The constitutional guarantees of freedom of speech forbid the States to punish the use of words or *522 language not within "narrowly limited classes of speech." Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). Even as to such a class, however, because "the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," Speiser v. Randall, 357 U.S. 513, 525 (1958), "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom," Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, supra, at 433. Appellant does not challenge these principles but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words—"fighting" words—"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . . ." Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, "long before *523 the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words: "[N]o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed . . . . ..... "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . "The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee . . . ." 91 N. H. 310, 313, 320-321, 18 A.2d 754, 758, 762 (1941). In view of that authoritative construction, this Court held: "We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace." 315 U.S., at 573. Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California, 403 U. S., at 20; Bachellar v. Maryland, 397 U.S. 564, 567 (1970); see Street v. New York, 394 U.S. 576, 592 (1969). We reaffirm that proposition today. *524 Appellant argues that the Georgia appellate courts have by construction limited the proscription of § 26-6303 to "fighting" words, as the New Hampshire Supreme Court limited the New Hampshire statute. "A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated `fighting words.' " Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms." 303 F. Supp., at 955. The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench.[2] Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts § 58, pp. 240-241 (2d ed. 1970). We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed § 26-6303 to be limited in application, as in Chaplinsky, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." *525 The dictionary definitions of "opprobrious" and "abusive" give them greater reach than "fighting" words. Webster's Third New International Dictionary (1961) defined "opprobrious" as "conveying or intended to convey disgrace," and "abusive" as including "harsh insulting language." Georgia appellate decisions have construed § 26-6303 to apply to utterances that, although within these definitions, are not "fighting" words as Chaplinsky defines them. In Lyons v. State, 94 Ga. App. 570, 95 S.E.2d 478 (1956), a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting, "Boys, this is where we are going to spend the night." "Get the G__ d___ bed rolls out . . . let's see how close we can come to the G__ d___ tents." Again, in Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), the Georgia Supreme Court held that a jury question was presented by the remark, "You swore a lie." Again, Jackson v. State, 14 Ga. App. 19, 80 S.E. 20 (1913), held that a jury question was presented by the words addressed to another, "God damn you, why don't you get out of the road?" Plainly, although "conveying . . . disgrace" or "harsh insulting language," these were not words "which by their very utterance . . . tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572. Georgia appellate decisions construing the reach of "tending to cause a breach of the peace" underscore that § 26-6303 is not limited, as appellant argues, to words that "naturally tend to provoke violent resentment." Lyons v. State, supra; Fish v. State, supra; and Jackson v. State, supra. Indeed, the Georgia Court of Appeals[3] in Elmore v. State, 15 Ga. App. 461, 83 S. E. *526 799 (1914), construed "tending to cause a breach of the peace" as mere "words of description, indicating the kind or character of opprobrious or abusive language that is penalized, and the use of language of this character is a violation of the statute, even though it be addressed to one who, on account of circumstances or by virtue of the obligations of office, can not actually then and there resent the same by a breach of the peace . . . . ". . . Suppose that one, at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated? . . . ". . . [T]hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position." 15 Ga. App., at 461-463, 83 S. E., at 799-800.[4] *527 Moreover, in Samuels v. State, 103 Ga. App. 66, 67, 118 S.E.2d 231, 232 (1961), the Court of Appeals, in applying another statute, adopted from a textbook the common-law definition of "breach of the peace." "The term `breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community . . . . By `peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members." This definition makes it a "breach of peace" merely to speak words offensive to some who hear them, and so sweeps too broadly. Street v. New York, 394 U. S., at 592. "[H]ow infinitely more doubtful and uncertain are the boundaries of an offense including any `diversion tending to a breach of the peace'. . . ." Gregory v. Chicago, 394 U.S. 111, 119 (1969) (Black, J., concurring) (emphasis supplied). Accordingly, we agree with the District Court that our decisions in Ashton v. Kentucky, 384 U.S. 195 (1966), and Cox v. Louisiana, 379 U.S. 536 (1965), compel the conclusion that § 26-6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton we held that "to make an offense of conduct which is `calculated to create disturbances of the peace' leaves wide open the standard of responsibility." 384 U.S., at 200. In Cox v. Louisiana the statute struck down included as an element congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby." As the District Court observed, "[a]s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute." 303 F. Supp., at 956. *528 We conclude that "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [Georgia] has supplied." Speiser v. Randall, 357 U. S., at 525. The most recent decision of the Georgia Supreme Court, Wilson v. State, supra, in rejecting appellee's attack on the constitutionality of § 26-6303, stated that the statute "conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice." 223 Ga., at 533, 156 S. E. 2d, at 448. Because earlier appellate decisions applied § 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt "measured by common understanding and practice" does not limit the application of § 26-6303 to "fighting" words defined by Chaplinsky. Rather, that broad standard effectively "licenses the jury to create its own standard in each case." Herndon v. Lowry, 301 U.S. 242, 263 (1937). Accordingly, we agree with the conclusion of the District Court, "[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application." 303 F. Supp., at 955-956. Unlike the construction of the New Hampshire statute by the New Hampshire Supreme Court, the Georgia appellate courts have not construed § 26-6303 "so as to avoid all constitutional difficulties." United States v. Thirty-seven Photographs, 402 U. S., at 369. Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code *519 Ann. 26-6303, which provides: "Any person who shall, without provocation, use to or of another, and in his presence opprobrious words or abusive language, tending to cause a breach of the peace shall be guilty of a misdemeanor." Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that 26-6303 was facially unconstitutional was ripe for decision.[1] On the merits *520 of that question, the District Court, in disagreement with the Georgia Supreme Court, held that 26-6303, on its face, was unconstitutionally vague and broad and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. We noted probable jurisdiction of the 's appeal, We affirm. Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, ; Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe *521 speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," ; see also ; ; ; United ; This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. "Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." (citation omitted). The constitutional guarantees of freedom of speech forbid the s to punish the use of words or *522 language not within "narrowly limited classes of speech." Even as to such a class, however, because "the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom," In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." at Appellant does not challenge these principles but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words—"fighting" words—"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." In Chaplinsky, we sustained a conviction under Chapter 378, 2, of the Public Laws of New which provided: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name" Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New however, "long before *523 the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words: "[N]o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. Derisive and annoying words can be taken as coming within the purview of the statute only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. "The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee" 91 N. H. 310, 313, 320-321, In view of that authoritative construction, this Court held: "We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace." Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, ; ; see We reaffirm that proposition today. *524 Appellant argues that the Georgia appellate courts have by construction limited the proscription of 26-6303 to "fighting" words, as the New Supreme Court limited the New statute. "A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated `fighting words.' " Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms." The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench.[2] Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts 58, pp. 240-241 We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed 26-6303 to be limited in application, as in Chaplinsky, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." * The dictionary definitions of "opprobrious" and "abusive" give them greater reach than "fighting" words. Webster's Third New International Dictionary defined "opprobrious" as "conveying or intended to convey disgrace," and "abusive" as including "harsh insulting language." Georgia appellate decisions have construed 26-6303 to apply to utterances that, although within these definitions, are not "fighting" words as Chaplinsky defines them. In a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting, "Boys, this is where we are going to spend the night." "Get the G d bed rolls out let's see how close we can come to the G d tents." Again, in the Georgia Supreme Court held that a jury question was presented by the remark, "You swore a lie." Again, held that a jury question was presented by the words addressed to another, "God damn you, why don't you get out of the road?" Plainly, although "conveying disgrace" or "harsh insulting language," these were not words "which by their very utterance tend to incite an immediate breach of the peace." Georgia appellate decisions construing the reach of "tending to cause a breach of the peace" underscore that 26-6303 is not limited, as appellant argues, to words that "naturally tend to provoke violent resentment." and Indeed, the Georgia Court of Appeals[3] in Elmore v. construed "tending to cause a breach of the peace" as mere "words of description, indicating the kind or character of opprobrious or abusive language that is penalized, and the use of language of this character is a violation of the statute, even though it be addressed to one who, on account of circumstances or by virtue of the obligations of office, can not actually then and there resent the same by a breach of the peace ". Suppose that one, at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated? ". [T]hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position." -800.[4] *527 Moreover, in Samuels v. the Court of Appeals, in applying another statute, adopted from a textbook the common-law definition of "breach of the peace." "The term `breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community By `peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members." This definition makes it a "breach of peace" merely to speak words offensive to some who hear them, and so sweeps too broadly. 394 U. S., at "[H]ow infinitely more doubtful and uncertain are the boundaries of an offense including any `diversion tending to a breach of the peace'." (emphasis supplied). Accordingly, we agree with the District Court that our decisions in and compel the conclusion that 26-6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton we held that "to make an offense of conduct which is `calculated to create disturbances of the peace' leaves wide open the standard of responsibility." In the statute struck down included as an element congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby." As the District Court observed, "[a]s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute." *528 We conclude that "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [Georgia] has supplied." 357 U. S., at The most recent decision of the Georgia Supreme Court, in rejecting appellee's attack on the constitutionality of 26-6303, stated that the statute "conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice." 156 S. E. 2d, at 448. Because earlier appellate decisions applied 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt "measured by common understanding and practice" does not limit the application of 26-6303 to "fighting" words defined by Chaplinsky. Rather, that broad standard effectively "licenses the jury to create its own standard in each case." Accordingly, we agree with the conclusion of the District Court, "[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application." -956. Unlike the construction of the New statute by the New Supreme Court, the Georgia appellate courts have not construed 26-6303 "so as to avoid all constitutional difficulties." United 402 U. S., at Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

Justice Alito

concurring

Fry v. Napoleon Community Schools

https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/

https://www.courtlistener.com/api/rest/v3/clusters/4374576/

2016-006

I join all of the opinion of the Court with the exception of its discussion (in the text from the beginning of the first new paragraph on page 15 to the end of the opinion) in which the Court provides several misleading “clue[s],” ante, at 15, for the lower courts. The Court first instructs the lower courts to inquire whether the plaintiff could have brought “essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library.” Ibid. Next, the Court says, a court should ask whether “an adult at the school—say, an employee or visitor—[could] have pressed essentially the same griev- ance.” Ibid. These clues make sense only if there is no overlap between the relief available under the following two sets of claims: (1) the relief provided by the Individu- als with Disabilities Education Act (IDEA), and (2) the relief provided by other federal laws (including the Consti- tution, the Americans with Disabilities Act of 1990 (ADA), and the Rehabilitation Act of 1973). The Court does not show or even claim that there is no such overlap—to the contrary, it observes that “[t]he same conduct might vio- 2 FRY v. NAPOLEON COMMUNITY SCHOOLS Opinion of ALITO, J. late” the ADA, the Rehabilitation Act and the IDEA. Ibid. And since these clues work only in the absence of overlap, I would not suggest them. The Court provides another false clue by suggesting that lower courts take into account whether parents, before filing suit under the ADA or the Rehabilitation Act, began to pursue but then abandoned the IDEA’s formal proce- dures. Ante, at 17–18. This clue also seems to me to be ill-advised. It is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide. The parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute. Although the Court provides these clues for the purpose of assisting the lower courts, I am afraid that they may have the opposite effect. They are likely to confuse and lead courts astray

I join all of the opinion of the Court with the exception of its discussion (in the text from the beginning of the first new paragraph on page 15 to the end of the opinion) in which the Court provides several misleading “clue[s],” ante, at 15, for the lower courts. The Court first instructs the lower courts to inquire whether the plaintiff could have brought “essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library.” Next, the Court says, a court should ask whether “an adult at the school—say, an employee or visitor—[could] have pressed essentially the same griev- ance.” These clues make sense only if there is no overlap between the relief available under the following two sets of claims: (1) the relief provided by the Individu- als with Disabilities Education Act (IDEA), and (2) the relief provided by other federal laws (including the Consti- tution, the Americans with Disabilities Act of 1990 (ADA), and the Rehabilitation Act of 1973). The Court does not show or even claim that there is no such overlap—to the contrary, it observes that “[t]he same conduct might vio- 2 FRY v. NAPOLEON COMMUNITY SCHOOLS Opinion of ALITO, J. late” the ADA, the Rehabilitation Act and the IDEA. And since these clues work only in the absence of overlap, I would not suggest them. The Court provides another false clue by suggesting that lower courts take into account whether parents, before filing suit under the ADA or the Rehabilitation Act, began to pursue but then abandoned the IDEA’s formal proce- dures. Ante, at 17–18. This clue also seems to me to be ill-advised. It is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide. The parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another. Or the parents might change their minds about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute. Although the Court provides these clues for the purpose of assisting the lower courts, I am afraid that they may have the opposite effect. They are likely to confuse and lead courts astray

Justice Scalia

concurring

United States v. Arvizu

https://www.courtlistener.com/opinion/118474/united-states-v-arvizu/

https://www.courtlistener.com/api/rest/v3/clusters/118474/

2001-015

I join the opinion of the Court, because I believe it accords with our opinion in Ornelas v. United States, 517 U.S. 690, 699 (1996), requiring de novo review which nonetheless gives "due weight to inferences drawn from [the] facts by resident judges . . . ." As I said in my dissent in Ornelas, however, I do not see how deferring to the District Court's factual inferences (as opposed to its findings of fact) is compatible with de novo review. Id., at 705. The Court today says that "due weight" should have been given to the District Court's determinations that the children's waving was "`methodical,' `mechanical,' `abnormal,' and `certainly . . . a fact that is odd and would lead a reasonable officer to wonder why they are doing this.' " Ante, at 276. "Methodical," "mechanical," and perhaps even "abnormal" and "odd," are findings of fact that deserve respect. But the inference that this "would lead a reasonable officer to wonder why they are doing this," amounts to the conclusion that their action was suspicious, which I would have thought (if de novo review is the standard) is the prerogative of the Court of Appeals. So we have here a peculiar sort of de novo review. I may add that, even holding the Ninth Circuit to no more than the traditional methodology of de novo review, its judgment here would have to be reversed.

I join the opinion of the Court, because I believe it accords with our opinion in requiring de novo review which nonetheless gives "due weight to inferences drawn from [the] facts by resident judges" As I said in my dissent in Ornelas, however, I do not see how deferring to the District Court's factual inferences (as opposed to its findings of fact) is compatible with de novo review. The Court today says that "due weight" should have been given to the District Court's determinations that the children's waving was "`methodical,' `mechanical,' `abnormal,' and `certainly a fact that is odd and would lead a reasonable officer to wonder why they are doing this.' " Ante, at 276. "Methodical," "mechanical," and perhaps even "abnormal" and "odd," are findings of fact that deserve respect. But the inference that this "would lead a reasonable officer to wonder why they are doing this," amounts to the conclusion that their action was suspicious, which I would have thought (if de novo review is the standard) is the prerogative of the Court of Appeals. So we have here a peculiar sort of de novo review. I may add that, even holding the Ninth Circuit to no more than the traditional methodology of de novo review, its judgment here would have to be reversed.

Justice Brennan

dissenting

United States v. Brewster

https://www.courtlistener.com/opinion/108607/united-states-v-brewster/

https://www.courtlistener.com/api/rest/v3/clusters/108607/

1971-172

When this case first came before the Court, I had thought it presented a single, well-defined issue—that is, whether the Congress could authorize by a narrowly drawn statute the prosecution of a Senator or Representative for conduct otherwise immune from prosecution under the Speech or Debate Clause of the Constitution. Counts 1, 3, 5, and 7 of the indictment charged Senator Brewster with receiving $19,000 "in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity [as a member of the Senate Post Office Committee]." Count 9 charged the Senator with receipt of another $5,000 for acts already performed by him with respect to his "action, vote and decision" on that legislation. These charges, it seemed to me, fell within the clear prohibition of the Speech or Debate Clause as interpreted by decisions of this Court, particularly United States v. Johnson, 383 U.S. 169 (1966). *530 For if the indictment did not call into question the "speeches or debates" of the Senator, it certainly laid open to scrutiny the motives for his legislative acts; and those motives, I had supposed, were no more subject to executive and judicial inquiry than the acts themselves, unless, of course, the Congress could delegate such inquiry to the other branches. That, apparently, was the Government's view of the case as well. At the hearing before the District Court the prosecutor was asked point blank whether "the indictment in any wise allege[d] that Brewster did anything not related to his purely legislative functions." The prosecutor responded: "We are not contending that what is being charged here, that is, the activity by Brewster, was anything other than a legislative act. We are not ducking the question; it is squarely presented. They are legislative acts. We are not going to quibble over that." App. 28. The Government, in other words, did not challenge the applicability of the Clause to these charges, but argued only that its prohibitions could be avoided, "waived" as it were, through congressional authorization in the form of a narrowly drawn bribery statute. The District Court accepted the Government's reading of the indictment and held that the Senator could not be prosecuted for this conduct even under the allegedly narrow provisions of 18 U.S. C. § 201: "Gentlemen, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States. *531 "It is the opinion of this Court that the immunity under the Speech and Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in Johnson, shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act." App. 33. Furthermore, the Government's initial brief in this Court, doubtless reflecting its recognition that Johnson had rejected the analysis adopted by the Court today, did not argue that a prosecution for acceptance of a bribe in return for a promise to vote a certain way falls outside the prohibition of the Speech or Debate Clause. Rather, the Government's brief conceded or at least assumed that such conduct does constitute "Speech or Debate," but urged that Congress may enact a statute, such as 18 U.S. C. § 201, providing for judicial trial of the alleged crime. Given these admissions by the Government and the District Court's construction of the indictment, which settled doctrine makes binding on this Court, United States v. Jones, 345 U.S. 377, 378 (1953), the only issue properly before us was whether Congress is empowered to delegate to the Executive and Judicial Branches the trial of a member for conduct otherwise protected by the Clause. Today, however, the Court finds it unnecessary to reach that issue, for it finds that the indictment, though charging receipt of a bribe for legislative acts, entails "no inquiry into legislative acts or motivation for legislative acts," ante, at 525, and thus is not covered by the Clause. In doing so the Court permits the Government to recede from its firm admissions, it ignores the District Court's binding construction of the *532 indictment, and—most important—it repudiates principles of legislative freedom developed over the past century in a line of cases culminating in Johnson. Those principles, which are vital to the right of the people to be represented by Congressmen of independence and integrity, deserve more than the hasty burial given them by the Court today. I must therefore dissent. I I would dispel at the outset any notion that Senator Brewster's asserted immunity strains the outer limits of the Clause. The Court writes at length in an effort to show that "Speech or Debate" does not cover "all conduct relating to the legislative process." Ante, at 515. Even assuming the validity of that conclusion, I fail to see its relevance to the instant case. Senator Brewster is not charged with conduct merely "relating to the legislative process," but with a crime whose proof calls into question the very motives behind his legislative acts. The indictment, then, lies not at the periphery but at the very center of the protection that this Court has said is provided a Congressman under the Clause. Decisions of this Court dating as far back as 1881 have consistently refused to limit the concept of "legislative acts" to the "Speech or Debate" specifically mentioned in Art. I, § 6. In Kilbourn v. Thompson, 103 U.S. 168 (1881), the Court held that: "It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally *533 done in a session of the House by one of its members in relation to the business before it." Id., at 204. In reaching its conclusion, the Court adopted what was said by the Supreme Judicial Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1 (1808), which Kilbourn held to be perhaps "the most authoritative case in this country on the construction of the provision in regard to freedom of debate in legislative bodies . . . ." 103 U.S., at 204. Chief Justice Parsons, speaking for the Massachusetts court, expressed what Kilbourn and later decisions saw as a properly generous view of the legislative privilege: "These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber." 4 Mass., at 27. *534 There can be no doubt, therefore, that Senator Brewster's vote on new postal rates constituted legislative activity within the meaning of the Clause. The Senator could not be prosecuted or called to answer for his vote in any judicial or executive proceeding. But the Senator's immunity, I submit, goes beyond the vote itself and precludes all extra-congressional scrutiny as to how and why he cast, or would have cast, his vote a certain way. In Tenney v. Brandhove, 341 U.S. 367 (1951), the plaintiff charged that a state legislative hearing was being conducted not for a proper legislative purpose but solely as a means of harassing him. Nevertheless the Court held that no action would lie against the committee members under federal civil rights statutes. Mr. Justice Frankfurter stated: "The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. . . . ". . . In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging *535 or correcting such abuses." Id., at 377-378. Barring congressional power to authorize this prosecution, what has been said thus far would seem sufficient to require affirmance of the order of dismissal, for neither Senator Brewster's vote nor his motives for voting, however dishonorable, may be the subject of a civil or criminal proceeding outside the halls of the Senate. There is nothing complicated about this conclusion. It follows simply and inescapably from prior decisions of this Court, supra, setting forth the most basic elements of legislative immunity. Yet the Court declines to apply those principles to this case, for it somehow finds that the Government can prove its case without referring to the Senator's official acts or motives. According to the Court, the Government can limit its proof on Counts 1, 3, 5, and 7 to evidence concerning Senator Brewster's "taking or agreeing to take money for a promise to act in a certain way," and need not show "that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise." Ante, at 526. Similarly, the Court finds that Count 9 can be proved merely by showing that the Senator solicited or received money "with knowledge that the donor was paying him compensation for an official act," without any inquiry "into the legislative performance itself." Ante, at 527. These evidentiary limitations are deemed sufficient to avoid the prohibitions of the Speech or Debate Clause. With all respect, I think that the Court has adopted a wholly artificial view of the charges before us. The indictment alleges, not the mere receipt of money, but the receipt of money in exchange for a Senator's vote and promise to vote in a certain way. Insofar as these charges bear on votes already cast, the Government cannot *536 avoid proving the performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, that form the basis of Count 9 of the indictment. Proof of "knowledge that the donor was paying . . . for an official act" may be enough for conviction under § 201 (g). But assuming it is, the Government still must demonstrate that the "official act" referred to was actually performed, for that is what the indictment charges. Count 9, in other words, calls into question both the performance of official acts by the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause. The counts charging only a corrupt promise to vote are equally repugnant to the Clause. The Court may be correct that only receipt of the bribe, and not performance of the bargain, is needed to prove these counts. But proof of an agreement to be "influenced" in the performance of legislative acts is by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother WHITE cogently states, post, at 556: "Bribery is most often carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain." *537 Thus, even if this were an issue of first impression, I would hold that this prosecution, being an extra-congressional inquiry into legislative acts and motives, is barred by the Speech or Debate Clause. What is especially disturbing about the Court's result, however, is that this is not an issue of first impression, but one that was settled six years ago in United States v. Johnson, 383 U.S. 169 (1966). There a former Congressman was charged with violating the federal conflict-of-interest statute, 18 U.S. C. § 281 (1964 ed.), and with conspiring to defraud the United States, 18 U.S. C. § 371, by accepting a bribe in exchange for his agreement to seek dismissal of federal indictments pending against officers of several savings and loan companies. Part of the alleged conspiracy was a speech delivered by Johnson on the floor of the House, favorable to loan companies generally. The Government relied on that speech at trial and questioned Johnson extensively about its contents, authorship, and his reasons for delivering it. The Court of Appeals set aside the conspiracy conviction, holding that the Speech or Debate Clause barred such a prosecution based on an allegedly corrupt promise to deliver a congressional speech. In appealing that decision the Government made the very same argument that appears to persuade the Court today: "[The rationale of the Clause] is applicable in suits based upon the content of a legislator's speech or action, where immunity is necessary to prevent impediments to the free discharge of his public duties. But it does not justify granting him immunity from prosecution for accepting or agreeing to accept money to make a speech in Congress. The latter case poses no threat which could reasonably cause a Congressman to restrain himself in his official speech, because no speech, as such, is being *538 questioned. It is only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such a prosecution. `Whether the party taking the bribe lives up to his corrupt promise or not is immaterial. The agreement is the essence of the offense; when that is consummated, the offense is complete.' 3 Wharton, Criminal Law and Procedure, § 1383 (Anderson ed. 1957) . . . . Thus, if respondent, after accepting the bribe, had failed to carry out his bargain, he could still be prosecuted for the same offense charged here, but it could not be argued that any speech was being `questioned' in his prosecution. The fact that respondent fulfilled his bargain and delivered the corrupt speech should not render the entire course of conduct constitutionally protected." Brief for the United States in United States v. Johnson, No. 25, O. T. 1965, pp. 10-11. The Johnson opinion answered this argument in two places. After emphasizing that the prosecution at issue was "based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests," the Court stated, 383 U.S., at 180: "However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and . . . that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry." (Emphasis supplied.) *539 Again, the Court stated, id., at 182-183: "The Government argues that the clause was meant to prevent only prosecutions based upon the `content' of speech, such as libel actions, but not those founded on `the antecedent unlawful conduct of accepting or agreeing to accept a bribe.' Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms." Finally, any doubt that the Johnson Court rejected the argument put forward by the Government was dispelled by its citation of Ex parte Wason, L. R. 4 Q. B. 573 (1869). In that case a private citizen moved to require a magistrate to prosecute several members of the House of Lords for conspiring to prevent his petition from being heard on the floor. The court denied the motion, holding that "statements made by members of either House of Parliament in their places in the House . . . could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law." Id., at 576 (Cockburn, C. J.). Mr. Justice Blackburn added, "I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence." Ibid. Johnson, then, can only be read as holding that a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution. *540 In the face of that holding and Johnson's rejection of reasoning identical to its own, the Court finds support in the fact that Johnson "authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated." Ante, at 511. But the Court ignores the fact that, with the speech and its motives excluded from consideration, this new trial was for nothing more than a conspiracy to intervene before an Executive Department, i. e., the Justice Department. And such executive intervention has never been considered legislative conduct entitled to the protection of the Speech or Debate Clause. See infra, at 542. The Court cannot camouflage its departure from the holding of Johnson by referring to a collateral ruling having little relevance to the fundamental issues of legislative privilege involved in that case. I would follow Johnson and hold that Senator Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry. II The only issue for me, then, is the one left open in Johnson—that is, the validity of a "prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded [not upon a general conspiracy statute but] upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." 383 U.S., at 185. Assuming that 18 U.S. C. § 201 is such a "narrowly drawn statute," I do not believe that it, any more than a general enactment, can serve as the instrument for holding a Congressman accountable for his legislative acts outside the confines of his own chamber. The Government offers several reasons why such a "waiver" of legislative immunity should be allowed. None of these, it seems to me, is sufficient to override *541 the public's interest in legislative independence, secured to it by the principles of the Speech or Debate Clause.[1] As a preliminary matter, the Government does not contend, nor can it, that no forum was provided in which Senator Brewster might have been punished if guilty. Article I, § 5, of the Constitution provides that "[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." This power has a broad reach, extending "to all cases where the offence is such as in the judgment of the [House or] Senate is inconsistent with the trust and duty of a member." In re Chapman, 166 U.S. 661, 669-670 (1897). Chapman, for example, concerned a Senate investigation of charges that Senate members had speculated in stocks of companies interested in a pending tariff bill. Similarly, the House of Representatives in 1873 censured two members for accepting stock to forestall a congressional inquiry into the Credit Mobilier. There are also many instances of imprisonment or expulsion by Parliament of members who accepted bribes.[2] Though conceding that the Houses of Congress are empowered to punish their members under Art. I, § 5, the Government urges that Congress may also enact a statute, such as 18 U.S. C. § 201, providing for judicial enforcement of that power. In support of this position, the Government relies primarily on the following language from the opinion in Burton v. United States, 202 U.S. 344, 367 (1906): "While the framers of the Constitution intended *542 that each Department should keep within its appointed sphere of public action, it was never contemplated that the authority of the Senate to admit to a seat in its body one who had been duly elected as a Senator, or its power to expel him after being admitted, should, in any degree, limit or restrict the authority of Congress to enact such statutes, not forbidden by the Constitution, as the public interests required for carrying into effect the powers granted to it." However, Burton was not a case that involved conduct protected by the Speech or Debate Clause. Senator Burton was prosecuted for accepting money to influence the Post Office Department in a mail fraud case in violation of Rev. Stat. § 1782, 13 Stat. 123. That was nonlegislative conduct, and as we said in Johnson, supra, at 172 "[n]o argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process." Such a prosecution, as the quoted excerpt from Burton specifically said, is "not forbidden by the Constitution," but that holding has little relevance to a case, such as this one, involving legislative acts and motives. The Government, however, cites additional considerations to support the authority of Congress to provide for judicial trials of corrupt Members; the press of congressional business, the possibility of politically motivated judgments by fellow Members, and the procedural safeguards of a judicial trial are all cited as reasons why Congress should be allowed to transfer the trial of a corrupt Member from the Houses of Congress to the courts. Once again, these are arguments urged and found unpersuasive in Johnson. I find them no more *543 persuasive now. I may assume as a general matter that the "Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons." United States v. Brown, 381 U.S. 437, 445 (1965). Yet it does not necessarily follow that prosecutors, judges, and juries are better equipped than legislators to make the kinds of political judgments required here. Senators and Congressmen are never entirely free of political pressures, whether from their own constituents or from special-interest lobbies. Submission to these pressures, in the hope of political and financial support, or the fear of its withdrawal, is not uncommon, nor is it necessarily unethical.[3] The line between legitimate influence and outright bribe may be more a matter of emphasis than objective fact, and in the end may turn on the trier's view of what was proper in the context of the everyday realities and necessities of political office. Whatever the special competence of the judicial process *544 in other areas, members of Congress themselves are likely to be in the better position to judge the issue of bribery relating to legislative acts. The observation of Mr. Justice Frankfurter bears repeating here: "Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses." Tenney v. Brandhove, 341 U. S., at 378. Nor is the Member at the mercy of his colleagues, free to adjust as they wish his rights to due process and free expression. It is doubtful, for example, that the Congress could punish a Member for the mere expression of unpopular views otherwise protected by the First Amendment. See Bond v. Floyd, 385 U.S. 116 (1966). And judicial review of the legislative inquiry is not completely foreclosed; the power of the House and Senate to discipline the conduct of Members is not exempt from the "restraints imposed by or found in the implications of the Constitution." Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929), quoted in Powell v. McCormack, 395 U.S. 486, 519 n. 40 (1969). Finally, the Government relies on the history of the Clause to support a congressional power of delegation. While agreeing that the Speech or Debate Clause was a "culmination of a long struggle for parliamentary supremacy" and a reaction against the Crown's use of "criminal and civil law to suppress and intimidate critical legislators," Johnson, supra, at 178, the Government urges that this is not the whole story. It points out that while a large part of British history was taken up with Parliament's struggles to free itself from royal domination, the balance of power was not always ranged against it. Once Parliament succeeded in asserting rightful dominion over its members and the conduct of its business, Parliament sought to extend its reach *545 into areas and for purposes that can only be labeled an abuse of legislative power. Aware of these abuses, the Framers, the Government submits, did not mean Congress to have exclusive power, but one which, by congressional delegation, might be shared with the Executive and Judicial Branches. That the Parliamentary privilege was indeed abused is historical fact. By the close of the 17th century, Parliament had succeeded in obtaining rights of free speech and debate as well as the power to punish offenses of its members contravening the good order and integrity of its processes. In 1694, five years after incorporation of the Speech or Debate Clause in the English Bill of Rights, Lord Falkland was found guilty in Commons of accepting a bribe of 2,000 pounds from the Crown, and was imprisoned during the pleasure of the House. The Speaker of the House of Commons, Sir John Trevor, was censured for bribery the following year.[4] But Parliament was not content with mere control over its members' conduct. Independence brought an assertion of absolute power over the definition and reach of institutional privileges. "[T]he House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege." Watkins v. United States, 354 U.S. 178, 188 (1957). Thus, having established the basic privilege of its members *546 to be free from civil arrest or punishment, the House extended the privilege to its members' servants, and punished trespass on the estates of its members, or theft of their or their servants' goods. The House went so far as to declare its members' servants to be outside the reach of the common-law courts during the time that Parliament was sitting. This led to the sale of "protections" providing that named persons were servants of a particular member and should be free from arrest, imprisonment, and molestation during the term of Parliament.[5] These abuses in turn were brought to America. By 1662, for example, the Virginia House of Burgesses had succeeded in exempting not only its members, but their servants as well, from arrest and molestation.[6] The Government is correct in pointing out that the Framers, aware of these abuses, were determined to guard against them. Madison stated that the "legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex."[7] And Jefferson looked on the "tyranny of the *547 legislatures" as "the most formidable dread at present, and will be for long years."[8] Therefore the Framers refused to adopt the lex parliamenti, which would have allowed Congressmen and their servants to enjoy numerous immunities from ordinary legal restraints. But it does not follow that the Framers went further and authorized Congress to transfer discipline of bribe takers to the Judicial Branch. The Government refers us to nothing in the Convention debates or in writings of the Framers that even remotely supports the argument. Indeed there is much in the history of the Clause to point the other way, toward a personalized legislative privilege not subject to defeasance even by a specific congressional delegation to the courts. The Johnson opinion details the history. The Clause was formulated by the Convention's Committee on Style, which phrased it by revising Article V of the Articles of Confederation which had provided: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress." (Emphasis supplied.) This wording derived in turn from the provision of the English Bill of Rights of 1689 that "Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." (Emphasis supplied.) The same wording, or variations of it, appeared in state constitutions. Article VIII of the Maryland Declaration of Rights (1776) declared that legislative freedom "ought not to be impeached in any other court or judicature." The Massachusetts Bill of Rights (Art. XXI, 1780) provided that the "freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, *548 action or complaint, in any other court or place whatsoever." The New Hampshire Constitution (Art. XXX, 1784) contained a provision virtually identical to Massachusetts'. In short "[f]reedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." Tenney v. Brandhove, 341 U. S., at 372. Despite his fear of "legislative excess," Tenney v. Brandhove, supra, at 375, Jefferson, when confronted with criticism of certain Congressmen by the Richmond, Virginia, grand jury, said: "[T]hat in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive." 8 The Works of Thomas Jefferson 322 (Ford ed. 1904). Jefferson's point of view was shared by his contemporaries[9] and found judicial expression as early as 1808, in the Coffin opinion, supra. It was there stated: "In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to *549 this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrests on mesne (or original) process, during his going to, returning from, or attending the general court. Of these privileges, thus secured to each member, he cannot be deprived, by a resolve of the house, or by an act of the legislature." 4 Mass., at 27. (Emphasis supplied.) In short, if the Framers contemplated judicial inquiry into legislative acts, even on the specific authorization of Congress, that intent is not reflected in the language of the Speech or Debate Clause or contemporary understanding of legislative privilege. History certainly shows that the Framers feared unbridled legislative power. That fact, however, yields no basis for an interpretation that in Art. I, §§ 1 and 8, the Framers authorized Congress to ignore the prohibition against inquiry in "any other place" and enact a statute either of general application or specifically providing for a trial in the courts of a member who takes a bribe for conduct related to legislative acts.[10] *550 III I yield nothing to the Court in conviction that this reprehensible and outrageous conduct, if committed by the Senator, should not have gone unpunished. But whether a court or only the Senate might undertake the task is a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer that Congress assigned the task to the judiciary in enacting 18 U.S. C. § 201. Our duty is to Nation and Constitution, not Congress. We are guilty of a grave disservice to both Nation and Constitution when we permit Congress to shirk its responsibility in favor of the courts. The Framers' judgment was that the American people could have a Congress of independence and integrity only if alleged misbehavior in the performance of legislative functions was accountable solely to a Member's own House and never to the executive or judiciary. The passing years have amply justified the wisdom of that judgment. It is the Court's duty to enforce the letter of the Speech or Debate Clause in that spirit. We did so in deciding Johnson. In turning its back on that decision today, the Court arrogates to the judiciary an authority committed by the Constitution, in Senator Brewster's case, exclusively to the Senate of the United States. Yet the Court provides no principled justification, and I can think of none, for its denial that United States v. Johnson compels affirmance of the District Court. That decision is only six years old and bears the indelible imprint of the distinguished constitutional scholar who wrote the opinion for the Court. Johnson surely merited a longer life. *551 MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR.

When this case first came before the Court, I had thought it presented a single, well-defined issue—that is, whether the Congress could authorize by a narrowly drawn statute the prosecution of a Senator or Representative for conduct otherwise immune from prosecution under the Speech or Debate Clause of the Constitution. Counts 1, 3, 5, and 7 of the indictment charged Senator Brewster with receiving $19,000 "in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity [as a member of the Senate Post Office Committee]." Count 9 charged the Senator with receipt of another $5,000 for acts already performed by him with respect to his "action, vote and decision" on that legislation. These charges, it seemed to me, fell within the clear prohibition of the Speech or Debate Clause as interpreted by decisions of this Court, particularly United *530 For if the indictment did not call into question the "speeches or debates" of the Senator, it certainly laid open to scrutiny the motives for his legislative acts; and those motives, I had supposed, were no more subject to executive and judicial inquiry than the acts themselves, unless, of course, the Congress could delegate such inquiry to the other branches. That, apparently, was the Government's view of the case as well. At the hearing before the District Court the prosecutor was asked point blank whether "the indictment in any wise allege[d] that Brewster did anything not related to his purely legislative functions." The prosecutor responded: "We are not contending that what is being charged here, that is, the activity by Brewster, was anything other than a legislative act. We are not ducking the question; it is squarely presented. They are legislative acts. We are not going to quibble over that." App. 28. The Government, in other words, did not challenge the applicability of the Clause to these charges, but argued only that its prohibitions could be avoided, "waived" as it were, through congressional authorization in the form of a narrowly drawn bribery statute. The District Court accepted the Government's reading of the indictment and held that the Senator could not be prosecuted for this conduct even under the allegedly narrow provisions of 18 U.S. C. 201: "Gentlemen, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States. *531 "It is the of this Court that the immunity under the Speech and Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act." App. 33. Furthermore, the Government's initial brief in this Court, doubtless reflecting its recognition that had rejected the analysis adopted by the Court today, did not argue that a prosecution for acceptance of a bribe in return for a promise to vote a certain way falls outside the prohibition of the Speech or Debate Clause. Rather, the Government's brief conceded or at least assumed that such conduct does constitute "Speech or Debate," but urged that Congress may enact a statute, such as 18 U.S. C. 201, providing for judicial trial of the alleged crime. Given these admissions by the Government and the District Court's construction of the indictment, which settled doctrine makes binding on this Court, United the only issue properly before us was whether Congress is empowered to delegate to the Executive and Judicial Branches the trial of a member for conduct otherwise protected by the Clause. Today, however, the Court finds it unnecessary to reach that issue, for it finds that the indictment, though charging receipt of a bribe for legislative acts, entails "no inquiry into legislative acts or motivation for legislative acts," ante, at 525, and thus is not covered by the Clause. In doing so the Court permits the Government to recede from its firm admissions, it ignores the District Court's binding construction of the *532 indictment, and—most important—it repudiates principles of legislative freedom developed over the past century in a line of cases culminating in Those principles, which are vital to the right of the people to be represented by Congressmen of independence and integrity, deserve more than the hasty burial given them by the Court today. I must therefore dissent. I I would dispel at the outset any notion that Senator Brewster's asserted immunity strains the outer limits of the Clause. The Court writes at length in an effort to show that "Speech or Debate" does not cover "all conduct relating to the legislative process." Ante, at 515. Even assuming the validity of that conclusion, I fail to see its relevance to the instant case. Senator Brewster is not charged with conduct merely "relating to the legislative process," but with a crime whose proof calls into question the very motives behind his legislative acts. The indictment, then, lies not at the periphery but at the very center of the protection that this Court has said is provided a Congressman under the Clause. Decisions of this Court dating as far back as have consistently refused to limit the concept of "legislative acts" to the "Speech or Debate" specifically mentioned in Art. I, 6. In the Court held that: "It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally *533 done in a session of the House by one of its members in relation to the business before it." In reaching its conclusion, the Court adopted what was said by the Supreme Judicial Court of Massachusetts in which Kilbourn held to be perhaps "the most authoritative case in this country on the construction of the provision in regard to freedom of debate in legislative bodies" 103 U.S., Chief Justice Parsons, speaking for the Massachusetts court, expressed what Kilbourn and later decisions saw as a properly generous view of the legislative privilege: "These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber." *534 There can be no doubt, therefore, that Senator Brewster's vote on new postal rates constituted legislative activity within the meaning of the Clause. The Senator could not be prosecuted or called to answer for his vote in any judicial or executive proceeding. But the Senator's immunity, I submit, goes beyond the vote itself and precludes all extra-congressional scrutiny as to how and why he cast, or would have cast, his vote a certain way. In the plaintiff charged that a state legislative hearing was being conducted not for a proper legislative purpose but solely as a means of harassing him. Nevertheless the Court held that no action would lie against the committee members under federal civil rights statutes. Mr. Justice Frankfurter : "The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. ". In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging *535 or correcting such abuses." at 377-. Barring congressional power to authorize this prosecution, what has been said thus far would seem sufficient to require affirmance of the order of dismissal, for neither Senator Brewster's vote nor his motives for voting, however dishonorable, may be the subject of a civil or criminal proceeding outside the halls of the Senate. There is nothing complicated about this conclusion. It follows simply and inescapably from prior decisions of this Court, setting forth the most basic elements of legislative immunity. Yet the Court declines to apply those principles to this case, for it somehow finds that the Government can prove its case without referring to the Senator's official acts or motives. According to the Court, the Government can limit its proof on Counts 1, 3, 5, and 7 to evidence concerning Senator Brewster's "taking or agreeing to take money for a promise to act in a certain way," and need not show "that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise." Ante, at 526. Similarly, the Court finds that Count 9 can be proved merely by showing that the Senator solicited or received money "with knowledge that the donor was paying him compensation for an official act," without any inquiry "into the legislative performance itself." Ante, at 527. These evidentiary limitations are deemed sufficient to avoid the prohibitions of the Speech or Debate Clause. With all respect, I think that the Court has adopted a wholly artificial view of the charges before us. The indictment alleges, not the mere receipt of money, but the receipt of money in exchange for a Senator's vote and promise to vote in a certain way. Insofar as these charges bear on votes already cast, the Government cannot *536 avoid proving the performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, that form the basis of Count 9 of the indictment. Proof of "knowledge that the donor was paying for an official act" may be enough for conviction under 201 (g). But assuming it is, the Government still must demonstrate that the "official act" referred to was actually performed, for that is what the indictment charges. Count 9, in other words, calls into question both the performance of official acts by the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause. The counts charging only a corrupt promise to vote are equally repugnant to the Clause. The Court may be correct that only receipt of the bribe, and not performance of the bargain, is needed to prove these counts. But proof of an agreement to be "influenced" in the performance of legislative acts is by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother WHITE cogently states, post, at 556: "Bribery is most often carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain." *537 Thus, even if this were an issue of first impression, I would hold that this prosecution, being an extra-congressional inquiry into legislative acts and motives, is barred by the Speech or Debate Clause. What is especially disturbing about the Court's result, however, is that this is not an issue of first impression, but one that was settled six years ago in United There a former Congressman was charged with violating the federal conflict-of-interest statute, 18 U.S. C. 281 (1964 ed.), and with conspiring to defraud the United States, 18 U.S. C. 371, by accepting a bribe in exchange for his agreement to seek dismissal of federal indictments pending against officers of several savings and loan companies. Part of the alleged conspiracy was a speech delivered by on the floor of the House, favorable to loan companies generally. The Government relied on that speech at trial and questioned extensively about its contents, authorship, and his reasons for delivering it. The Court of Appeals set aside the conspiracy conviction, holding that the Speech or Debate Clause barred such a prosecution based on an allegedly corrupt promise to deliver a congressional speech. In appealing that decision the Government made the very same argument that appears to persuade the Court today: "[The rationale of the Clause] is applicable in suits based upon the content of a legislator's speech or action, where immunity is necessary to prevent impediments to the free discharge of his public duties. But it does not justify granting him immunity from prosecution for accepting or agreeing to accept money to make a speech in Congress. The latter case poses no threat which could reasonably cause a Congressman to restrain himself in his official speech, because no speech, as such, is being *538 questioned. It is only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such a prosecution. `Whether the party taking the bribe lives up to his corrupt promise or not is immaterial. The agreement is the essence of the offense; when that is consummated, the offense is complete.' 3 Wharton, Criminal Law and Procedure, 1383 Thus, if respondent, after accepting the bribe, had failed to carry out his bargain, he could still be prosecuted for the same offense charged here, but it could not be argued that any speech was being `questioned' in his prosecution. The fact that respondent fulfilled his bargain and delivered the corrupt speech should not render the entire course of conduct constitutionally protected." Brief for the United States in United No. 25, O. T. 1965, pp. 10-11. The answered this argument in two places. After emphasizing that the prosecution at issue was "based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests," the Court : "However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry." (Emphasis supplied.) *539 Again, the Court at 182-183: "The Government argues that the clause was meant to prevent only prosecutions based upon the `content' of speech, such as libel actions, but not those founded on `the antecedent unlawful conduct of accepting or agreeing to accept a bribe.' Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms." Finally, any doubt that the Court rejected the argument put forward by the Government was dispelled by its citation of Ex parte Wason, L. R. 4 Q. B. 573 (1869). In that case a private citizen moved to require a magistrate to prosecute several members of the House of Lords for conspiring to prevent his petition from being heard on the floor. The court denied the motion, holding that "statements made by members of either House of Parliament in their places in the House could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law." Mr. Justice Blackburn added, "I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence." then, can only be read as holding that a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution. *540 In the face of that holding and 's rejection of reasoning identical to its own, the Court finds support in the fact that "authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated." Ante, at 511. But the Court ignores the fact that, with the speech and its motives excluded from consideration, this new trial was for nothing more than a conspiracy to intervene before an Executive Department, i. e., the Justice Department. And such executive intervention has never been considered legislative conduct entitled to the protection of the Speech or Debate Clause. See infra, at 542. The Court cannot camouflage its departure from the holding of by referring to a collateral ruling having little relevance to the fundamental issues of legislative privilege involved in that case. I would follow and hold that Senator Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry. II The only issue for me, then, is the one left open in —that is, the validity of a "prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded [not upon a general conspiracy statute but] upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." Assuming that 18 U.S. C. 201 is such a "narrowly drawn statute," I do not believe that it, any more than a general enactment, can serve as the instrument for holding a Congressman accountable for his legislative acts outside the confines of his own chamber. The Government offers several reasons why such a "waiver" of legislative immunity should be allowed. None of these, it seems to me, is sufficient to override *541 the public's interest in legislative independence, secured to it by the principles of the Speech or Debate Clause.[1] As a preliminary matter, the Government does not contend, nor can it, that no forum was provided in which Senator Brewster might have been punished if guilty. Article I, 5, of the Constitution provides that "[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." This power has a broad reach, extending "to all cases where the offence is such as in the judgment of the [House or] Senate is inconsistent with the trust and duty of a member." In re Chapman, Chapman, for example, concerned a Senate investigation of charges that Senate members had speculated in stocks of companies interested in a pending tariff bill. Similarly, the House of Representatives in 1873 censured two members for accepting stock to forestall a congressional inquiry into the Credit Mobilier. There are also many instances of imprisonment or expulsion by Parliament of members who accepted bribes.[2] Though conceding that the Houses of Congress are empowered to punish their members under Art. I, 5, the Government urges that Congress may also enact a statute, such as 18 U.S. C. 201, providing for judicial enforcement of that power. In support of this position, the Government relies primarily on the following language from the in : "While the framers of the Constitution intended *542 that each Department should keep within its appointed sphere of public action, it was never contemplated that the authority of the Senate to admit to a seat in its body one who had been duly elected as a Senator, or its power to expel him after being admitted, should, in any degree, limit or restrict the authority of Congress to enact such statutes, not forbidden by the Constitution, as the public interests required for carrying into effect the powers granted to it." However, Burton was not a case that involved conduct protected by the Speech or Debate Clause. Senator Burton was prosecuted for accepting money to influence the Post Office Department in a mail fraud case in violation of Rev. Stat. 1782, That was nonlegislative conduct, and as we said in at 172 "[n]o argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process." Such a prosecution, as the quoted excerpt from Burton specifically said, is "not forbidden by the Constitution," but that holding has little relevance to a case, such as this one, involving legislative acts and motives. The Government, however, cites additional considerations to support the authority of Congress to provide for judicial trials of corrupt Members; the press of congressional business, the possibility of politically motivated judgments by fellow Members, and the procedural safeguards of a judicial trial are all cited as reasons why Congress should be allowed to transfer the trial of a corrupt Member from the Houses of Congress to the courts. Once again, these are arguments urged and found unpersuasive in I find them no more *543 persuasive now. I may assume as a general matter that the "Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons." United Yet it does not necessarily follow that prosecutors, judges, and juries are better equipped than legislators to make the kinds of political judgments required here. Senators and Congressmen are never entirely free of political pressures, whether from their own constituents or from special-interest lobbies. Submission to these pressures, in the hope of political and financial support, or the fear of its withdrawal, is not uncommon, nor is it necessarily unethical.[3] The line between legitimate influence and outright bribe may be more a matter of emphasis than objective fact, and in the end may turn on the trier's view of what was proper in the context of the everyday realities and necessities of political office. Whatever the special competence of the judicial process *544 in other areas, members of Congress themselves are likely to be in the better position to judge the issue of bribery relating to legislative acts. The observation of Mr. Justice Frankfurter bears repeating here: "Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses." 341 U. S., at Nor is the Member at the mercy of his colleagues, free to adjust as they wish his rights to due process and free expression. It is doubtful, for example, that the Congress could punish a Member for the mere expression of unpopular views otherwise protected by the First Amendment. See And judicial review of the legislative inquiry is not completely foreclosed; the power of the House and Senate to discipline the conduct of Members is not exempt from the "restraints imposed by or found in the implications of the Constitution." quoted in Finally, the Government relies on the history of the Clause to support a congressional power of delegation. While agreeing that the Speech or Debate Clause was a "culmination of a long struggle for parliamentary supremacy" and a reaction against the Crown's use of "criminal and civil law to suppress and intimidate critical legislators," the Government urges that this is not the whole story. It points out that while a large part of British history was taken up with Parliament's struggles to free itself from royal domination, the balance of power was not always ranged against it. Once Parliament succeeded in asserting rightful dominion over its members and the conduct of its business, Parliament sought to extend its reach *545 into areas and for purposes that can only be labeled an abuse of legislative power. Aware of these abuses, the Framers, the Government submits, did not mean Congress to have exclusive power, but one which, by congressional delegation, might be shared with the Executive and Judicial Branches. That the Parliamentary privilege was indeed abused is historical fact. By the close of the 17th century, Parliament had succeeded in obtaining rights of free speech and debate as well as the power to punish offenses of its members contravening the good order and integrity of its processes. In 1694, five years after incorporation of the Speech or Debate Clause in the English Bill of Rights, Lord Falkland was found guilty in Commons of accepting a bribe of 2,000 pounds from the Crown, and was imprisoned during the pleasure of the House. The Speaker of the House of Commons, Sir John Trevor, was censured for bribery the following year.[4] But Parliament was not content with mere control over its members' conduct. Independence brought an assertion of absolute power over the definition and reach of institutional privileges. "[T]he House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege." Thus, having established the basic privilege of its members *546 to be free from civil arrest or punishment, the House extended the privilege to its members' servants, and punished trespass on the estates of its members, or theft of their or their servants' goods. The House went so far as to declare its members' servants to be outside the reach of the common-law courts during the time that Parliament was sitting. This led to the sale of "protections" providing that named persons were servants of a particular member and should be free from arrest, imprisonment, and molestation during the term of Parliament.[5] These abuses in turn were brought to America. By 1662, for example, the Virginia House of Burgesses had succeeded in exempting not only its members, but their servants as well, from arrest and molestation.[6] The Government is correct in pointing out that the Framers, aware of these abuses, were determined to guard against them. Madison that the "legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex."[7] And Jefferson looked on the "tyranny of the *547 legislatures" as "the most formidable dread at present, and will be for long years."[8] Therefore the Framers refused to adopt the lex parliamenti, which would have allowed Congressmen and their servants to enjoy numerous immunities from ordinary legal restraints. But it does not follow that the Framers went further and authorized Congress to transfer discipline of bribe takers to the Judicial Branch. The Government refers us to nothing in the Convention debates or in writings of the Framers that even remotely supports the argument. Indeed there is much in the history of the Clause to point the other way, toward a personalized legislative privilege not subject to defeasance even by a specific congressional delegation to the courts. The details the history. The Clause was formulated by the Convention's Committee on Style, which phrased it by revising Article V of the Articles of Confederation which had provided: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress." (Emphasis supplied.) This wording derived in turn from the provision of the English Bill of Rights of 1689 that "Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." (Emphasis supplied.) The same wording, or variations of it, appeared in state constitutions. Article VIII of the Maryland Declaration of Rights (1776) declared that legislative freedom "ought not to be impeached in any other court or judicature." The Massachusetts Bill of Rights (Art. XXI, 1780) provided that the "freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, *548 action or complaint, in any other court or place whatsoever." The New Hampshire Constitution (Art. XXX, 1784) contained a provision virtually identical to Massachusetts'. In short "[f]reedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." Despite his fear of "legislative excess," Jefferson, when confronted with criticism of certain Congressmen by the Richmond, Virginia, grand jury, said: "[T]hat in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive." 8 The Works of Thomas Jefferson 322 (Ford ed. 1904). Jefferson's point of view was shared by his contemporaries[9] and found judicial expression as early as in the Coffin It was there : "In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to *549 this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrests on mesne (or original) process, during his going to, returning from, or attending the general court. Of these privileges, thus secured to each member, he cannot be deprived, by a resolve of the house, or by an act of the legislature." (Emphasis supplied.) In short, if the Framers contemplated judicial inquiry into legislative acts, even on the specific authorization of Congress, that intent is not reflected in the language of the Speech or Debate Clause or contemporary understanding of legislative privilege. History certainly shows that the Framers feared unbridled legislative power. That fact, however, yields no basis for an interpretation that in Art. I, 1 and 8, the Framers authorized Congress to ignore the prohibition against inquiry in "any other place" and enact a statute either of general application or specifically providing for a trial in the courts of a member who takes a bribe for conduct related to legislative acts.[10] *550 III I yield nothing to the Court in conviction that this reprehensible and outrageous conduct, if committed by the Senator, should not have gone unpunished. But whether a court or only the Senate might undertake the task is a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer that Congress assigned the task to the judiciary in enacting 18 U.S. C. 201. Our duty is to Nation and Constitution, not Congress. We are guilty of a grave disservice to both Nation and Constitution when we permit Congress to shirk its responsibility in favor of the courts. The Framers' judgment was that the American people could have a Congress of independence and integrity only if alleged misbehavior in the performance of legislative functions was accountable solely to a Member's own House and never to the executive or judiciary. The passing years have amply justified the wisdom of that judgment. It is the Court's duty to enforce the letter of the Speech or Debate Clause in that spirit. We did so in deciding In turning its back on that decision today, the Court arrogates to the judiciary an authority committed by the Constitution, in Senator Brewster's case, exclusively to the Senate of the United States. Yet the Court provides no principled justification, and I can think of none, for its denial that United compels affirmance of the District Court. That decision is only six years old and bears the indelible imprint of the distinguished constitutional scholar who wrote the for the Court. surely merited a longer life. *551 MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR.

Justice Douglas

dissenting

Moor v. County of Alameda

https://www.courtlistener.com/opinion/108782/moor-v-county-of-alameda/

https://www.courtlistener.com/api/rest/v3/clusters/108782/

1972-114

The claims in the instant actions arose out of the May 1969 People's Park disturbance, in which petitioners were allegedly injured by an Alameda County deputy sheriff who was performing duties at that time on behalf of the County. Petitioners brought actions against several deputies, the sheriff, and the County. The complaints against the County alleged federal causes of action under the Civil Rights Acts, 42 U.S. C. §§ 1981, 1983, 1985, 1986, 1988, and pendent state claims under § 810 et seq. of the California Government Code. Both federal and state causes of action were premised on the theory that the County could be held vicariously liable for the acts of the deputies. The County subsequently filed motions to dismiss the claims against it in each case, contending that, as to the Civil Rights Act claims, the County was not a "person" who could be sued under the Act. The trial court ultimately granted these motions and ordered that all claims against the County be dismissed. The Court of Appeals affirmed these orders of the District Court, Moor v. Madigan, 458 F.2d 1217 (CA9). Title 42 U.S. C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured *723 in an action at law, suit in equity, or other proper proceeding for redress." In Monroe v. Pape, 365 U.S. 167, we held that a municipality was not a "person" within the meaning of that Act. The issue was whether or not the Act made municipalities liable in damages, id., at 187-191, that claim being strongly pressed because "private remedies against officers for illegal searches and seizures are conspicuously ineffective and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level." Id., at 191. We certainly said, as the Court holds, that a municipality was not a "person" within the meaning of § 1983. Ibid. But § 1983 permits equitable relief, as well as damages, not directly involved in Monroe v. Pape but a matter we explored at some length last Term in Mitchum v. Foster, 407 U.S. 225. There may be overtones in Monroe v. Pape that even suits in equity are barred. Yet we never have so held. Certainly a residuum of power seems available in § 1983 to enjoin such bizarre conduct as the offering to the police of classes in torture. More realistically, § 1983 as construed in Mitchum v. Foster might under some circumstances authorize a federal injunction against a municipal prosecution of an offender. Such being my understanding of Monroe v. Pape and Mitchum v. Foster, I would hold that the County of Alameda in this case is a "person" within the meaning of § 1983 for a narrow group of equity actions and that therefore the District Court did not lack jurisdiction. Although the complaint in the instant action asked for damages, it also prayed for any further relief that the court might deem just and proper. Since the complaint was dismissed at the threshold of the litigation, it is impossible to determine whether or not grounds for equitable *724 relief would have emerged during the normal course of the litigation. But the prayer for any "further relief" would embrace it. In any event an amended complaint could make the matter clear beyond peradventure. That raises the question as to the liability of the County of Alameda, by reason of 42 U.S. C. § 1988, which reads: "The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty." Under California law "[a] public entity may sue and be sued." (Govt. Code § 945), although a public entity has a general immunity from suit involving injury. Id., § 815. Moreover, an officer, while generally immune, may become liable in damages, if he uses unreasonable force against a citizen, in which event the municipality loses its immunity. That at least is the way I read Scruggs v. Haynes, 252 Cal. App. 2d 256, 60 Cal. Rptr. 355. Since § 1983 does not allow damages against the municipality *725 in a federal suit, federal laws "are not adapted to the object," and are "deficient in the provisions necessary to furnish suitable remedies," within the meaning of § 1988. While it is "inconsistent" with the "laws of the United States," as those words were used in § 1988, to enforce a federal cause of action for damages against the County of Alameda, it arguably is within the scheme of the state cause of action. This is not to allow state law to enlarge the scope of § 1983. Section 1983 by reason of its equity provision merely gives "jurisdiction" to the District Court, while § 1988 allows the District Court to apply state law. As we said in Mitchum v. Foster: "This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts." 407 U.S., at 242. The federal right here is not to obtain damages but to obtain some kind of equitable relief. Application by the federal court of a state cause of action for damages is therefore in harmony with both § 1983 and § 1988. As we stated in Sullivan v. Little Hunting Park, 396 U.S. 229, 240, "This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." The federal right here is the alleged "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" as these words are used in § 1983.

The claims in the instant actions arose out of the May 1969 People's Park disturbance, in which petitioners were allegedly injured by an Alameda County deputy sheriff who was performing duties at that time on behalf of the County. Petitioners brought actions against several deputies, the sheriff, and the County. The complaints against the County alleged federal causes of action under the Civil Rights Acts, 42 U.S. C. 1981, 1983, 1985, 1986, 1988, and pendent state claims under 810 et seq. of the California Government Code. Both federal and state causes of action were premised on the theory that the County could be held vicariously liable for the acts of the deputies. The County subsequently filed motions to dismiss the claims against it in each case, contending that, as to the Civil Rights Act claims, the County was not a "person" who could be sued under the Act. The trial court ultimately granted these motions and ordered that all claims against the County be dismissed. The Court of Appeals affirmed these orders of the District Court, (CA9). Title 42 U.S. C. 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured *723 in an action at law, suit in equity, or other proper proceeding for redress." In we held that a municipality was not a "person" within the meaning of that Act. The issue was whether or not the Act made municipalities liable in damages, that claim being strongly pressed because "private remedies against officers for illegal searches and seizures are conspicuously ineffective and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level." We certainly said, as the Court holds, that a municipality was not a "person" within the meaning of 1983. But 1983 permits equitable relief, as well as damages, not directly involved in but a matter we explored at some length last Term in There may be overtones in that even suits in equity are barred. Yet we never have so held. Certainly a residuum of power seems available in 1983 to enjoin such bizarre conduct as the offering to the police of classes in torture. More realistically, 1983 as construed in might under some circumstances authorize a federal injunction against a municipal prosecution of an offender. Such being my understanding of and I would hold that the County of Alameda in this case is a "person" within the meaning of 1983 for a narrow group of equity actions and that therefore the District Court did not lack jurisdiction. Although the complaint in the instant action asked for damages, it also prayed for any further relief that the court might deem just and proper. Since the complaint was dismissed at the threshold of the litigation, it is impossible to determine whether or not grounds for equitable *724 relief would have emerged during the normal course of the litigation. But the prayer for any "further relief" would embrace it. In any event an amended complaint could make the matter clear beyond peradventure. That raises the question as to the liability of the County of Alameda, by reason of 42 U.S. C. 1988, which reads: "The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty." Under California law "[a] public entity may sue and be sued." (Govt. Code 945), although a public entity has a general immunity from suit involving injury. 815. Moreover, an officer, while generally immune, may become liable in damages, if he uses unreasonable force against a citizen, in which event the municipality loses its immunity. That at least is the way I read Since 1983 does not allow damages against the municipality *725 in a federal suit, federal laws "are not adapted to the object," and are "deficient in the provisions necessary to furnish suitable remedies," within the meaning of 1988. While it is "inconsistent" with the "laws of the United States," as those words were used in 1988, to enforce a federal cause of action for damages against the County of Alameda, it arguably is within the scheme of the state cause of action. This is not to allow state law to enlarge the scope of 1983. Section 1983 by reason of its equity provision merely gives "jurisdiction" to the District Court, while 1988 allows the District Court to apply state law. As we said in : "This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts." The federal right here is not to obtain damages but to obtain some kind of equitable relief. Application by the federal court of a state cause of action for damages is therefore in harmony with both 1983 and 1988. As we stated in "This means, as we read 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." The federal right here is the alleged "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" as these words are used in 1983.

Justice Stevens

dissenting

Central Bank of Denver , NA v. First Interstate Bank of Denver , NA

https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/

https://www.courtlistener.com/api/rest/v3/clusters/117837/

1993-036

The main themes of the Court's opinion are that the text of § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S. C. § 78j(b), does not expressly mention aiding and abetting liability, and that Congress knows how to legislate. Both propositions are unexceptionable, but neither is reason to eliminate the private right of action against aiders and abettors of violations of § 10(b) and the Securities and Exchange Commission's (SEC's) Rule 10b—5. Because the majority gives short shrift to a long history of aider and abettor liability under § 10(b) and Rule 10b—5, and because its rationale imperils other well-established forms of secondary liability not expressly addressed in the securities laws, I respectfully dissent. In hundreds of judicial and administrative proceedings in every Circuit in the federal system, the courts and the SEC have concluded that aiders and abettors are subject to liability under § 10(b) and Rule 10b—5. See 5B A. Jacobs, Litigation and Practice Under Rule 10b—5 § 40.02 (rev. ed. 1993) (citing cases). While we have reserved decision on the legitimacy of the theory in two cases that did not present it, all 11 Courts of Appeals to have considered the question have recognized a private cause of action against aiders and abettors under § 10(b) and Rule 10b—5.[1] The early aiding *193 and abetting decisions relied upon principles borrowed from tort law; in those cases, judges closer to the times and climate of the 73d Congress than we concluded that holding aiders and abettors liable was consonant with the Exchange Act's purpose to strengthen the antifraud remedies of the common law.[2] One described the aiding and abetting theory, grounded in "general principles of tort law," as a "logical and natural complement" to the private § 10(b) action that furthered the Exchange Act's purpose of "creation and maintenance of a post-issuance securities market that is free from fraudulent practices." Brennan v. Midwestern United Life Ins. Co., 259 F. Supp. 673, 680 (ND Ind. 1966) (borrowing *194 formulation from the Restatement of Torts § 876(b) (1939)), later opinion, 286 F. Supp. 702 (1968), aff'd, 417 F.2d 147 (CA7 1969), cert. denied, 397 U.S. 989 (1970). See also Pettit v. American Stock Exchange, 217 F. Supp. 21, 28 (SDNY 1963). The Courts of Appeals have usually applied a familiar three-part test for aider and abettor liability, patterned on the Restatement of Torts formulation, that requires (i) the existence of a primary violation of § 10(b) or Rule 10b—5, (ii) the defendant's knowledge of (or recklessness as to) that primary violation, and (iii) "substantial assistance" of the violation by the defendant. See, e. g., Cleary v. Perfectune, Inc., 700 F.2d 774, 776-777 (CA1 1983); IIT, An Int'l Investment Trust v. Cornfeld, 619 F.2d 909, 922 (CA2 1980). If indeed there has been "continuing confusion" concerning the private right of action against aiders and abettors, that confusion has not concerned its basic structure, still less its "existence." See ante, at 170. Indeed, in this case, petitioner assumed the existence of a right of action against aiders and abettors, and sought review only of the subsidiary questions whether an indenture trustee could be found liable as an aider and abettor absent a breach of an indenture agreement or other duty under state law, and whether it could be liable as an aider and abettor based only on a showing of recklessness. These questions, it is true, have engendered genuine disagreement in the Courts of Appeals.[3] But instead of simply addressing the questions presented by the parties, on which the law really was unsettled, the Court sua sponte directed *195 the parties to address a question on which even the petitioner justifiably thought the law was settled, and reaches out to overturn a most considerable body of precedent.[4] Many of the observations in the majority's opinion would be persuasive if we were considering whether to recognize a private right of action based upon a securities statute enacted recently. Our approach to implied causes of action, as to other matters of statutory construction, has changed markedly since the Exchange Act's passage in 1934. At that time, and indeed until quite recently, courts regularly assumed, in accord with the traditional common-law presumption, that a statute enacted for the benefit of a particular class conferred on members of that class the right to sue violators of that statute.[5] Moreover, shortly before the Exchange Act was passed, this Court instructed that such "remedial" legislation should receive "a broader and more liberal interpretation than that to be drawn from mere dictionary definitions of the words employed by Congress." Piedmont & Northern R. Co. v. ICC, 286 U.S. 299, 311 (1932). There is a risk of anachronistic error in applying our current approach to implied causes of action, ante, at 176— 177, to a statute enacted when courts commonly read statutes *196 of this kind broadly to accord with their remedial purposes and regularly approved rights to sue despite statutory silence. Even had § 10(b) not been enacted against a backdrop of liberal construction of remedial statutes and judicial favor toward implied rights of action, I would still disagree with the majority for the simple reason that a "settled construction of an important federal statute should not be disturbed unless and until Congress so decides." Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (Stevens, J., concurring). See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975) (the "longstanding acceptance by the courts" and "Congress' failure to reject" rule announced in landmark Court of Appeals decision favored retention of the rule).[6] A policy of respect for consistent judicial and administrative interpretations leaves it to elected representatives to assess settled law and to evaluate the merits and demerits of changing it.[7] Even when there is no affirmative evidence of ratification, *197 the Legislature's failure to reject a consistent judicial or administrative construction counsels hesitation from a court asked to invalidate it. Cf. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). Here, however, the available evidence suggests congressional approval of aider and abettor liability in private § 10(b) actions. In its comprehensive revision of the Exchange Act in 1975, Congress left untouched the sizable body of case law approving aiding and abetting liability in private actions under § 10(b) and Rule 10b—5.[8] The case for leaving aiding *198 and abetting liability intact draws further strength from the fact that the SEC itself has consistently understood § 10(b) to impose aider and abettor liability since shortly after the rule's promulgation. See Ernst & Young, 494 U. S., at 75 (Stevens, J., concurring). In short, one need not agree as an original matter with the many decisions recognizing the private right against aiders and abettors to concede that the right fits comfortably within the statutory scheme, and that it has become a part of the established system of private enforcement. We should leave it to Congress to alter that scheme. The Court would be on firmer footing if it had been shown that aider and abettor liability "detracts from the effectiveness of the 10b—5 implied action or interferes with the effective operation of the securities laws." See Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 298 (1993). However, the line of decisions recognizing aider and abettor liability suffers from no such infirmities. The language of both § 10(b) and Rule 10b—5 encompasses "any person" who violates the Commission's antifraud rules, whether "directly or indirectly"; we have read this "broad" language "not technically and restrictively, but flexibly to effectuate its remedial purposes." Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 151 (1972). In light of the encompassing language of § 10(b), and its acknowledged purpose to strengthen the antifraud remedies of the common law, it was certainly no wild extrapolation for courts to conclude that aiders and abettors should be subject to the *199 private action under § 10(b).[9] Allowing aider and abettor claims in private § 10(b) actions can hardly be said to impose unfair legal duties on those whom Congress has opted to leave unregulated: Aiders and abettors of § 10(b) and Rule 10b—5 violations have always been subject to criminal liability under 18 U.S. C. § 2. See 15 U.S. C. § 78ff (criminal liability for willful violations of securities statutes and rules promulgated under them). Although the Court canvasses policy arguments against aider and abettor liability, ante, at 188-190, it does not suggest that the aiding and abetting theory has had such deleterious consequences that we should dispense with it on those grounds.[10] The agency charged with primary responsibility for enforcing the securities laws does not perceive such drawbacks, and urges retention of the private right to sue aiders and abettors. See Brief for SEC as Amicus Curiae 5-17. As framed by the Court's order redrafting the questions presented, this case concerns only the existence and scope of aiding and abetting liability in suits brought by private parties under § 10(b) and Rule 10b—5. The majority's rationale, *200 however, sweeps far beyond even those important issues. The majority leaves little doubt that the Exchange Act does not even permit the SEC to pursue aiders and abettors in civil enforcement actions under § 10(b) and Rule 10b—5. See ante, at 177 (finding it dispositive that "the text of the 1934 Act does not itself reach those who aid and abet a § 10(b) violation"). Aiding and abetting liability has a long pedigree in civil proceedings brought by the SEC under § 10(b) and Rule 10b—5, and has become an important part of the SEC's enforcement arsenal.[11] Moreover, the majority's approach to aiding and abetting at the very least casts serious doubt, both for private and SEC actions, on other forms of secondary liability that, like the aiding and abetting theory, have long been recognized by the SEC and the courts but are not expressly spelled out in the securities statutes.[12]*201 The principle the Court espouses today—that liability may not be imposed on parties who are not within the scope of § 10(b)'s plain language—is inconsistent with longestablished SEC and judicial precedent. As a general principle, I agree, "the creation of new rights ought to be left to legislatures, not courts." Musick, Peeler, 508 U. S., at 291. But judicial restraint does not always favor the narrowest possible interpretation of rights derived from federal statutes. While we are now properly reluctant to recognize private rights of action without an instruction from Congress, we should also be reluctant to lop off rights of action that have been recognized for decades, even if the judicial methodology that gave them birth is now out of favor. Caution is particularly appropriate here, because the judicially recognized right in question accords with the longstanding construction of the agency Congress has assigned to enforce the securities laws. Once again the Court has refused to build upon a "`secure foundation . . . laid by others,' " Patterson v. McLean Credit Union, 491 U.S. 164, 222 (1989) (Stevens, J., dissenting) (quoting B. Cardozo, The Nature of the Judicial Process 149 (1921)). I respectfully dissent.

The main themes of the Court's opinion are that the text of 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S. C. 78j(b), does not expressly mention aiding and abetting liability, and that Congress knows how to legislate. Both propositions are unexceptionable, but neither is reason to eliminate the private right of action against aiders and abettors of violations of 10(b) and the Securities and Exchange Commission's (SEC's) Rule 10b—5. Because the majority gives short shrift to a long history of aider and abettor liability under 10(b) and Rule 10b—5, and because its rationale imperils other well-established forms of secondary liability not expressly addressed in the securities laws, I respectfully dissent. In hundreds of judicial and administrative proceedings in every Circuit in the federal system, the courts and the SEC have concluded that aiders and abettors are subject to liability under 10(b) and Rule 10b—5. See 5B A. Jacobs, Litigation and Practice Under Rule 10b—5 40.02 (citing cases). While we have reserved decision on the legitimacy of the theory in two cases that did not present it, all 11 Courts of Appeals to have considered the question have recognized a private cause of action against aiders and abettors under 10(b) and Rule 10b—5.[1] The early aiding *193 and abetting decisions relied upon principles borrowed from tort law; in those cases, judges closer to the times and climate of the 73d Congress than we concluded that holding aiders and abettors liable was consonant with the Exchange Act's purpose to strengthen the antifraud remedies of the common law.[2] One described the aiding and abetting theory, grounded in "general principles of tort law," as a "logical and natural complement" to the private 10(b) action that furthered the Exchange Act's purpose of "creation and maintenance of a post-issuance securities market that is free from fraudulent practices." (borrowing *194 formulation from the Restatement of Torts 876(b) (1939)), later opinion, aff'd, cert. denied, See also The Courts of Appeals have usually applied a familiar three-part test for aider and abettor liability, patterned on the Restatement of Torts formulation, that requires (i) the existence of a primary violation of 10(b) or Rule 10b—5, (ii) the defendant's knowledge of (or recklessness as to) that primary violation, and (iii) "substantial assistance" of the violation by the defendant. See, e. g., ; IIT, An Int'l Investment If indeed there has been "continuing confusion" concerning the private right of action against aiders and abettors, that confusion has not concerned its basic structure, still less its "existence." See ante, at 170. Indeed, in this case, petitioner assumed the existence of a right of action against aiders and abettors, and sought review only of the subsidiary questions whether an indenture trustee could be found liable as an aider and abettor absent a breach of an indenture agreement or other duty under state law, and whether it could be liable as an aider and abettor based only on a showing of recklessness. These questions, it is true, have engendered genuine disagreement in the Courts of Appeals.[3] But instead of simply addressing the questions presented by the parties, on which the law really was unsettled, the Court sua sponte directed *195 the parties to address a question on which even the petitioner justifiably thought the law was settled, and reaches out to overturn a most considerable body of precedent.[4] Many of the observations in the majority's opinion would be persuasive if we were considering whether to recognize a private right of action based upon a securities statute enacted recently. Our approach to implied causes of action, as to other matters of statutory construction, has changed markedly since the Exchange Act's passage in 1934. At that time, and indeed until quite recently, courts regularly assumed, in accord with the traditional common-law presumption, that a statute enacted for the benefit of a particular class conferred on members of that class the right to sue violators of that statute.[5] Moreover, shortly before the Exchange Act was passed, this Court instructed that such "remedial" legislation should receive "a broader and more liberal interpretation than that to be drawn from mere dictionary definitions of the words employed by Congress." Piedmont & Northern R. 6 U.S. 299, There is a risk of anachronistic error in applying our current approach to implied causes of action, ante, at 176— 177, to a statute enacted when courts commonly read statutes *196 of this kind broadly to accord with their remedial purposes and regularly approved rights to sue despite statutory silence. Even had 10(b) not been enacted against a backdrop of liberal construction of remedial statutes and judicial favor toward implied rights of action, I would still disagree with the majority for the simple reason that a "settled construction of an important federal statute should not be disturbed unless and until Congress so decides." See Blue Chip[6] A policy of respect for consistent judicial and administrative interpretations leaves it to elected representatives to assess settled law and to evaluate the merits and demerits of changing it.[7] Even when there is no affirmative evidence of ratification, *197 the Legislature's failure to reject a consistent judicial or administrative construction counsels hesitation from a court asked to invalidate it. Cf. 5 U.S. 393, Here, however, the available evidence suggests congressional approval of aider and abettor liability in private 10(b) actions. In its comprehensive revision of the Exchange Act in 1975, Congress left untouched the sizable body of case law approving aiding and abetting liability in private actions under 10(b) and Rule 10b—5.[8] The case for leaving aiding *198 and abetting liability intact draws further strength from the fact that the SEC itself has consistently understood 10(b) to impose aider and abettor liability since shortly after the rule's promulgation. See Ernst & In short, one need not agree as an original matter with the many decisions recognizing the private right against aiders and abettors to concede that the right fits comfortably within the statutory scheme, and that it has become a part of the established system of private enforcement. We should leave it to Congress to alter that scheme. The Court would be on firmer footing if it had been shown that aider and abettor liability "detracts from the effectiveness of the 10b—5 implied action or interferes with the effective operation of the securities laws." See Musick, & 508 U.S. 6, However, the line of decisions recognizing aider and abettor liability suffers from no such infirmities. The language of both 10(b) and Rule 10b—5 encompasses "any person" who violates the Commission's antifraud rules, whether "directly or indirectly"; we have read this "broad" language "not technically and restrictively, but flexibly to effectuate its remedial purposes." Affiliated Ute Citizens of U.S. 1, In light of the encompassing language of 10(b), and its acknowledged purpose to strengthen the antifraud remedies of the common law, it was certainly no wild extrapolation for courts to conclude that aiders and abettors should be subject to the *199 private action under 10(b).[9] Allowing aider and abettor claims in private 10(b) actions can hardly be said to impose unfair legal duties on those whom Congress has opted to leave unregulated: Aiders and abettors of 10(b) and Rule 10b—5 violations have always been subject to criminal liability under 18 U.S. C. 2. See 15 U.S. C. 78ff (criminal liability for willful violations of securities statutes and rules promulgated under them). Although the Court canvasses policy arguments against aider and abettor liability, ante, at 188-190, it does not suggest that the aiding and abetting theory has had such deleterious consequences that we should dispense with it on those grounds.[10] The agency charged with primary responsibility for enforcing the securities laws does not perceive such drawbacks, and urges retention of the private right to sue aiders and abettors. See Brief for SEC as Amicus Curiae 5-17. As framed by the Court's order redrafting the questions presented, this case concerns only the existence and scope of aiding and abetting liability in suits brought by private parties under 10(b) and Rule 10b—5. The majority's rationale, *200 however, sweeps far beyond even those important issues. The majority leaves little doubt that the Exchange Act does not even permit the SEC to pursue aiders and abettors in civil enforcement actions under 10(b) and Rule 10b—5. See ante, at 177 (finding it dispositive that "the text of the 1934 Act does not itself reach those who aid and abet a 10(b) violation"). Aiding and abetting liability has a long pedigree in civil proceedings brought by the SEC under 10(b) and Rule 10b—5, and has become an important part of the SEC's enforcement arsenal.[11] Moreover, the majority's approach to aiding and abetting at the very least casts serious doubt, both for private and SEC actions, on other forms of secondary liability that, like the aiding and abetting theory, have long been recognized by the SEC and the courts but are not expressly spelled out in the securities statutes.[12]*201 The principle the Court espouses today—that liability may not be imposed on parties who are not within the scope of 10(b)'s plain language—is inconsistent with longestablished SEC and judicial precedent. As a general principle, I agree, "the creation of new rights ought to be left to legislatures, not courts." Musick, But judicial restraint does not always favor the narrowest possible interpretation of rights derived from federal statutes. While we are now properly reluctant to recognize private rights of action without an instruction from Congress, we should also be reluctant to lop off rights of action that have been recognized for decades, even if the judicial methodology that gave them birth is now out of favor. Caution is particularly appropriate here, because the judicially recognized right in question accords with the longstanding construction of the agency Congress has assigned to enforce the securities laws. Once again the Court has refused to build upon a "`secure foundation laid by others,' " (quoting B. Cardozo, The Nature of the Judicial Process 149 (1921)). I respectfully dissent.

Justice Blackmun

majority

Hisquierdo v. Hisquierdo

https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/

https://www.courtlistener.com/api/rest/v3/clusters/109976/

1978-034

Petitioner Jess H. Hisquierdo in 1975 sued to dissolve his marriage with respondent Angela Hisquierdo. The Supreme Court of California, in applying the State's community property rules, awarded respondent an interest in petitioner's expectation of ultimately receiving benefits under the Railroad Retirement Act of 1974, 88 Stat. 1305, 45 U.S. C. § 231 et seq. The issue here is whether the Act prohibits this allocation and division of benefits. I The Railroad Retirement Act, first passed in 1934, 48 Stat. 1283, provides a system of retirement and disability benefits for persons who pursue careers in the railroad industry. Its sponsors felt that the Act would encourage older workers to retire by providing them with the means "to enjoy the closing days of their lives with peace of mind and physical comfort," and so would "assure more rapid advancement in the service" *574 and also more jobs for younger workers.[1] Both employees and carriers pay a federal tax[2] which funds a Railroad Retirement Account. The Railroad Retirement Board, provided for by the Act, 45 U.S. C. § 231f, disburses benefits from the account to each eligible "individual," 45 U.S. C. § 231a. In its modern form,[3] the Act resembles both a private pension program and a social welfare plan. It provides two tiers of benefits. The upper tier, like a private pension, is tied to earnings and career service. An employee, to be eligible for benefits, must work in the industry 10 years. Absent disability, no benefit is paid, however, until the employee either reaches age 62 or is at least 60 years old and has completed 30 years of service. 45 U.S. C. § 231a (a) (1). Like a social welfare or insurance scheme, the taxes paid by *575 and on behalf of an employee do not necessarily correlate with the benefits to which the employee may be entitled. Since 1950, the Railroad Retirement Account has received substantial transfers from the social security system, and legislative changes made in 1974 were expected to require a one-time infusion of $7 billion in general tax revenues.[4] The lower, and larger, tier of benefits corresponds exactly to those an employee would expect to receive were he covered by the Social Security Act. 45 U.S. C. § 231b (a) (1). The Act provides special benefits for the children or parent of a worker who dies. §§ 231a (d) (1) (iii) and (iv). It also makes detailed provision for a worker's spouse; the spouse qualifies for an individual benefit if the spouse lives with the employee, and receives regular contributions from the employee for support, or is entitled to support from the employee pursuant to a court order. § 231a (c) (3) (i). The benefits terminate, however, when the spouse and the employee are absolutely divorced. § 231d (c) (3).[5] Like Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even eliminate, them at any time.[6] This vulnerability to congressional edict contrasts strongly with the protection Congress has afforded recipients from creditors, *576 taxgatherers, and all those who would "anticipate" the receipt of benefits: "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated . . . ." 45 U.S. C. § 231m.[7] In 1975, Congress made an exception to § 231m and similar provisions in all other federal benefit plans. Concerned about recipients who were evading support obligations and thereby throwing children and divorced spouses on the public dole, Congress amended the Social Security Act by adding a new provision, § 459, to the effect that, notwithstanding any contrary law, federal benefits may be reached to satisfy a legal obligation for child support or alimony. 88 Stat. 2357, 42 U.S. C. § 659.[8] In 1977, shortly before the issuance of the Supreme Court of California's opinion in this case, Congress added to the Social Security Act a definitional statute, § 462 (c), which relates to § 459 and limits "alimony" to its traditional *577 common-law meaning of spousal support. That statute states specifically that "alimony" "does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." Pub. L. 95-30, Tit. V, § 501 (d), 91 Stat. 160.[9] II Petitioner and respondent, who are California residents, were married in Nevada in 1958. They separated in 1972. In 1975 petitioner instituted this proceeding in the Superior Court of California, County of Los Angeles, for dissolution of the marriage. California, like seven other States, by statute has a form of community property law brought to our shores by the Spanish. In California the "statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after *578 dissolution, in case of surviving the other." Meyer v. Kinzer, 12 Cal. 247, 251 (1859).[10] Community property includes the property earned by either spouse during the union, as well as that given to both during the marriage. See Cal. Civ. Code Ann. § 687 (West 1954). It contrasts with separate property, which includes assets owned by a spouse before marriage or acquired separately by a spouse during marriage through gift. In community property States, ownership turns on the method and timing of acquisition, while the traditional view in common-law States is that ownership depends on title.[11] On the theory that petitioner acquired an expectation of receiving Railroad Retirement Act benefits due in part to his labors while married, respondent (but not petitioner) in the California divorce proceeding listed that expectation as an item of community property subject to division upon dissolution of the marriage. App. 2, 3. At the time, petitioner, a railroad machinist, was aged 55. He had worked from 1942 to 1975 for the Atchison, Topeka & Santa Fe Railway, and subsequently entered the employ of the Los Angeles Union Passenger Terminal. Both jobs fell within the Act. Because petitioner had 30 years' service, the statute would permit him to receive benefits if and when he attained age 60. Respondent calculated that she was entitled to half the benefits attributable to his labor during the 14 years of their marriage, or, by her estimates, 19.6% of the total benefits to be received.[12] The couple has no children. *579 Respondent in 1975 was 53. She had worked for the preceding eight years in a factory. She had been gainfully employed for 35 years and had an expectation that upon her retirement she would be entitled to benefits under the Social Security Act. Neither petitioner nor respondent claimed that her expectation of receiving those benefits was community property. App. 2, 3. Respondent, and petitioner, too, waived their claims to spousal support. Tr. of Oral Arg. 5, 33. After its hearing, the Superior Court awarded petitioner the couple's home, in which they had a $12,828 equity, and its furnishings. Respondent was awarded an automobile and a small interest in a mutual fund. The court, however, ordered petitioner to reimburse respondent, by installment payments, for her half of the equity in the home and protected this obligation with an imposed lien in her favor on the real estate. The court ruled that no community interest existed either in petitioner's prospect of receiving Railroad Retirement Act benefits or in respondent's anticipation of benefits under the Social Security Act. App. 4. The California Court of Appeal affirmed. In re Hisquierdo, 133 Cal. Rptr. 684 (2d Dist. 1976). The court, noting that under this Court's Supremacy Clause cases Congress has the power to determine the character of a federally created benefit, rejected respondent's claim that petitioner's expectation of receiving Railroad Retirement Act benefits was community property. The court reasoned that, because federal pension programs may be terminated by Congress at any time, petitioner had no enforceable contract right. Respondent contended that the state court, under the decision in In re Milhan, 13 Cal. 3d 129, 528 P.2d 1145 (1974), cert. denied, 421 U.S. 976 (1975), could determine the expected value of her interest and award her a compensating amount of other property available for distribution. The court held, however, that such a remedy would be contrary to § 231m, which provides that *580 benefits are not to be "anticipated," and would frustrate the explicit and detailed terms of the Act that grant the employee a benefit separate and distinct from the nonemployee spouse's benefit that terminates upon absolute divorce. See also In re Nizenkoff, 65 Cal. App. 3d 136, 135 Cal. Rptr. 189 (1st Dist. 1976) (expectation of receiving benefits under the Social Security Act); In re Kelley, 64 Cal. App. 3d 82, 134 Cal. Rptr. 259 (2d Dist. 1976) (the same). Review was granted by the Supreme Court of California. Respondent there argued that "there is absolutely no evidence that Congress ever intended to prevent a community property state from recognizing a spouse's community interest in a Railroad Retirement Act retirement plan."[13] In a unanimous opinion that court reversed the Court of Appeal. In re Hisquierdo, 19 Cal. 3d 613, 566 P.2d 224 (1977). Relying on its recent case law,[14] the Supreme Court of California held that because the benefits would flow in part from petitioner's employment during marriage, they were community property even though under federal law petitioner had no enforceable contract right. Congress' decision to terminate benefits for divorced spouses, the court believed, was evidence that Congress intended to rely on traditional state-law doctrines to protect them. The court rejected petitioner's contention that § 231m barred respondent's claim. The court reasoned that it was intended to bar creditors, and respondent was not a creditor but a present owner. The then very recent 1977 amendment to the Social Security Act (mentioned above as the new *581 § 462 (c) of that Act) was not discussed. The question of remedy was left open for decision on remand. The court indicated that by awarding respondent compensating property under the doctrine of In re Milhan, supra, a court could avoid any infringement on the Act's designation of petitioner as the "individual" recipient. We granted certiorari to consider whether, under the standard of this Court's decided Supremacy Clause cases, the award to respondent impermissibly conflicts with the Railroad Retirement Act.[15] 435 U.S. 994 (1978). III Insofar as marriage is within temporal control, the States lay on the guiding hand. "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." In re Burrus, 136 U.S. 586, 593-594 (1890). Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question. See, e. g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930). On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has "positively required by direct enactment" that state law be pre-empted. Wetmore v. Markoe, 196 U.S. 68, 77 (1904). A mere conflict in words is not sufficient. State family and family-property law must do "major damage" to "clear and substantial" federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352 (1966). *582 Nevertheless, on at least four prior occasions this Court has found it necessary to forestall such an injury to federal rights by state law based on community property concepts. In McCune v. Essig, 199 U.S. 382 (1905), federal homestead law, which permitted a widow to patent federal land that had been entered by her husband, prevailed over a daughter's asserted inheritance of her father's expectancy that the patent would issue to him. And in a trilogy of cases, the Court held that the survivorship rules in federal savings bond and military life insurance programs override community property law, absent fraud or breach of trust by the decedent. Yiatchos v. Yiatchos, 376 U.S. 306, 309 (1964); Free v. Bland, 369 U.S. 663 (1962); Wissner v. Wissner, 338 U.S. 655 (1950). This case, like those four, has to do with a conflict between federal and state rules for the allocation of a federal entitlement. The manipulation problem that concerned the Court in Yiatchos v. Yiatchos and Free v. Bland, however, cases in which savings bonds were purchased with community property, is not present here. Railroad Retirement Act benefits from their very inception have federal overtones. Compulsory federal taxes finance them and not just the taxes that fall on the employee. The benefits more closely parallel the land homesteaded in McCune v. Essig. Because the United States owned the land, title to it could not pass in a manner contrary to federal law, 199 U.S., at 390, even though a matter of that kind normally is left to the States. Here, California must defer to the federal statutory scheme for allocating Railroad Retirement Act benefits insofar as the terms of federal law require. The critical terms here include a specified beneficiary protected by a flat prohibition against attachment and anticipation. In Wissner v. Wissner, supra, the Court interpreted a somewhat similar provision[16] to preclude *583 a division for community property purposes, 338 U.S., at 659-660, even though Congress had not spoken with the specificity that characterizes the Social Security Act amendments that inform our decision here. The approach must be practical. The federal nature of the benefits does not by itself proscribe the entire field of state control. Petitioner contends, as the California Court of Appeal held, that the States may not create rights to these benefits that do not exist under federal law. Petitioner accordingly says that, because not even petitioner "owns" benefits until Congress has determined that they be paid, the Supreme Court of California erred in describing respondent as a present owner of an expectancy in those benefits. Such rights in the abstract, however, do not necessarily cause the injury to federal law that the Supremacy Clause forbids. The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition. A The first way in which respondent seeks to vindicate her community property interest, one particularly pressed at oral argument, Tr. of Oral Arg. 32, 44, is that the Superior Court would retain jurisdiction and order petitioner to pay her an appropriate portion of his benefit, or its monetary equivalent, as petitioner receives it. See In re Brown, 15 Cal. 3d 838, 848-850, 544 P.2d 561, 567-568 (1976). That course, however, runs contrary to the language and purpose of § 231m and would mechanically deprive petitioner of a portion of the benefit Congress, in § 231d (c) (3), indicated was designed for him alone. Section 231m plays a most important role in the statutory *584 scheme. Like anti-attachment provisions generally, see Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973); Wissner v. Wissner, supra, it ensures that the benefits actually reach the beneficiary. It pre-empts all state law that stands in its way. It protects the benefits from legal process "[n]otwithstanding any other law . . . of any State." Even state tax-collection laws must bow to its command, for Congress added that phrase in an amendment designed in part to ensure that neither federal nor state tax collectors would encroach on the distribution of benefits.[17] It prevents the vagaries of state law from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy. Congress carefully targeted the benefits created by the Railroad Retirement Act. It even embodied a community concept to an extent. The Act provides a benefit for a spouse, but the spouse need not have worked for a carrier. The spouse's sole contribution is to the marital community that supports the employee who has made railroad employment a career. Congress purposefully abandoned that theory, however, in allocating benefits upon absolute divorce. In direct language the spouse is cut off: "The entitlement of a spouse of an individual to an annuity . . . shall end on the last day of the month preceding *585 the month in which . . . the spouse and the individual are absolutely divorced." 45 U.S. C. § 231d (c) (3). The choice was deliberate. When the Act was revised in 1974, a proposal was made to award a divorced spouse a benefit like that available to a divorced spouse under the Social Security Act. The labor-management negotiation committee, however, rejected that proposal, and Congress ratified its decision. It based its conclusion on the perilous financial state of the Railroad Retirement Account, and the need to devote funds to other purposes.[18] Congress has made a choice, and § 231m protects it. It is for Congress to decide how these finite funds are to be allocated. The statutory balance is delicate. Congress has fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire. Any automatic diminution of that amount frustrates the congressional objective. By reducing benefits received, it discourages the divorced employee from retiring. And it provides the employee with an incentive to keep working, because the former spouse has no community property claim to salary earned after the marital community is dissolved. Section 231m shields the distribution of benefits from state decisions that would actually reverse the flow of incentives Congress originally intended. Respondent contends that this interpretation of the Act is manifestly unjust, and could not have been intended by *586 Congress. She suggests that her contribution to the marital community merits recompense, and she argues that, as a logical matter, Congress would not have terminated the spouse's benefit upon absolute divorce if it had thought that a divorced spouse would be totally unable to assert a state-law claim against the benefits received by the employee spouse. She urges that, at least with respect to spousal claims, the Court should hold that § 231m does no more than restate the Government's sovereign immunity from burdensome garnishment suits, and so has no effect on her right to require petitioner to reimburse her as he receives benefits. She notes that several courts have adopted this construction in holding that an errant spouse could be forced to pay child and spousal support upon receipt of Railroad Retirement Act payments.[19] We, however, cannot so lightly discard the settled view that anti-assignment statutes have substantive meaning. Section 231m goes far beyond garnishment. It states that the annuity shall not be subject to any "legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." Its terms make no exception for a spouse. The judicial construction on which respondent relies is a child of equity, not of law. In Wissner, the Court held that a similar line of authority did not apply to community property claims: "Venerable and worthy as this community is, it is not, we think, as likely to justify an exception to the congressional language as specific judicial recognition of particular *587 needs, in the alimony and support cases." 338 U.S., at 660. Now Congress has written into law the same distinction Wissner drew as a matter of policy. The 1977 amendments to the Social Security Act, by way of amending the existing § 459 and adding a new § 462, expressly override § 231m, and even facilitate garnishment for claims based on spousal support. They decline to do so, however, for community property claims. The legislative history is sparse and does not mention Wissner.[20] We know, however, that the purpose of § 459 was to help children and divorced spouses get off welfare. It is therefore logical to conclude that Congress, in adopting § 462 (c), thought that a family's need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so. *588 B Respondent contends that she can vindicate her interest and leave the benefit scheme intact by pursuing her remedy under In re Milhan, 13 Cal. App. 3d 129, 528 P.2d 1145 (1974). She seeks an offsetting award of presently available community property to compensate her for her interest in petitioner's expected benefits. As petitioner's counsel bluntly put it, respondent wants the house. Tr. of Oral Arg. 5. The expected value of the benefits is such that she could get it if this remedy were adopted. An offsetting award, however, would upset the statutory balance and impair petitioner's economic security just as surely as would a regular deduction from his benefit check. The harm might well be greater. Section 231m provides that payments are not to be "anticipated." Legislative history throws little light on the meaning of this word.[21] In the law of trusts, however, a prohibition against anticipation is commonly understood to mean that "the interest of a sole beneficiary shall not be paid to him before a certain date." E. Griswold, Spendthrift Trusts § 512, p. 583 (2d ed. 1947).[22] The *589 Railroad Retirement Act resembles a trust in certain respects. If that definition is applied here, then the offsetting award respondent seeks would improperly anticipate payment by allowing her to receive her interest before the date Congress has set for any interest to accrue. Any such anticipation threatens harm to the employee, and corresponding frustration to federal policy, over and above the mere loss of wealth caused by the offset. If, for example, a nonemployee spouse receives offsetting property, and then the employee spouse dies before collecting any benefits, the employee's heirs or beneficiaries suffer to the extent that the offset exceeds the lump-sum death benefits the Act provides. See 45 U.S. C. § 231e. Similarly, if the employee leaves the industry before retirement, and so fails to meet the "current connection with the railroad industry" requirement for certain supplemental benefits, see 45 U.S. C. § 231a (b) (1) (iv), the employee never will fully regain the amount of the offset. A third possibility, of course, is that Congress might alter the terms of the Act. In 1974, Congress eliminated certain double benefits accruing after 1982.[23] If past California property settlements had been based on those benefits, then the change in the Act would have worked a multiple penalty on future recipients. By barring lump-sum community property settlements based on mere expectations, the prohibition against anticipation prevents such an obvious frustration of congressional purpose. It also preserves congressional freedom to amend the Act, and so serves much the same function as the frequently stated understanding that programs of this nature convey no future rights and so may be changed without *590 taking property in violation of the Fifth Amendment. See Richardson v. Belcher, 404 U.S. 78, 80-81 (1971); Flemming v. Nestor, 363 U.S. 603, 608-611 (1960); Ruhl v. Railroad Retirement Board, 342 F.2d 662, 666 (CA7), cert. denied, 382 U.S. 836 (1965). IV We are mindful that retirement benefits are increasingly important in American life and that divorce is becoming more frequent. The burden of marital dissolution may be particularly onerous for a spouse who, unlike respondent, has no expectation of receiving his or her own social security benefits. The 1975 and 1977 amendments, however, both permit and encourage garnishment of Railroad Retirement Act benefits for the purposes of spousal support, and those benefits will be claimed by those who are in need. Congress may find that the distinction it has drawn is undesirable. Indeed, Congress recently has passed special legislation to allow garnishment of Civil Service Retirement benefits for community property purposes. See Pub. L. 95-366, 92 Stat. 600. For the present, however, the community property interest that respondent seeks conflicts with § 231m, promises to diminish that portion of the benefit Congress has said should go to the retired worker alone,[24] and threatens to penalize one whom Congress has sought to protect. It thus causes the kind of injury to federal interests that the Supremacy Clause forbids. It is not the province of state courts to strike a balance different from the one Congress has struck. *591 The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE STEWART, with whom MR.

Petitioner Jess H. Hisquierdo in 1975 sued to dissolve his marriage with respondent Angela Hisquierdo. The Supreme Court of California, in applying the State's community property rules, awarded respondent an interest in petitioner's expectation of ultimately receiving benefits under the Railroad Retirement Act of 45 U.S. C. 231 et seq. The issue here is whether the Act prohibits this allocation and division of benefits. I The Railroad Retirement Act, first passed in 1934, provides a system of retirement and disability benefits for persons who pursue careers in the railroad industry. Its sponsors felt that the Act would encourage older workers to retire by providing them with the means "to enjoy the closing days of their lives with peace of mind and physical comfort," and so would "assure more rapid advancement in the service" *574 and also more jobs for younger workers.[1] Both employees and carriers pay a federal tax[2] which funds a Railroad Retirement Account. The Railroad Retirement Board, provided for by the Act, 45 U.S. C. 231f, disburses benefits from the account to each eligible "individual," 45 U.S. C. 231a. In its modern form,[3] the Act resembles both a private pension program and a social welfare plan. It provides two tiers of benefits. The upper tier, like a private pension, is tied to earnings and career service. An employee, to be eligible for benefits, must work in the industry 10 years. Absent disability, no benefit is paid, however, until the employee either reaches age 62 or is at least 60 years old and has completed 30 years of service. 45 U.S. C. 231a (a) (1). Like a social welfare or insurance scheme, the taxes paid by *575 and on behalf of an employee do not necessarily correlate with the benefits to which the employee may be entitled. Since 1950, the Railroad Retirement Account has received substantial transfers from the social security system, and legislative changes made in were expected to require a one-time infusion of $7 billion in general tax revenues.[4] The lower, and larger, tier of benefits corresponds exactly to those an employee would expect to receive were he covered by the Social Security Act. 45 U.S. C. 231b (a) (1). The Act provides special benefits for the children or parent of a worker who dies. 231a (d) (1) (iii) and (iv). It also makes detailed provision for a worker's spouse; the spouse qualifies for an individual benefit if the spouse lives with the employee, and receives regular contributions from the employee for support, or is entitled to support from the employee pursuant to a court order. 231a (c) (3) (i). The benefits terminate, however, when the spouse and the employee are absolutely divorced. 231d (c) (3).[5] Like Social Security, and unlike most private pension plans, railroad retirement benefits are not contractual. Congress may alter, and even eliminate, them at any time.[6] This vulnerability to congressional edict contrasts strongly with the protection Congress has afforded recipients from creditors, *576 taxgatherers, and all those who would "anticipate" the receipt of benefits: "Notwithstanding any other of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated" 45 U.S. C. 231m.[7] In 1975, Congress made an exception to 231m and similar provisions in all other federal benefit plans. Concerned about recipients who were evading support obligations and thereby throwing children and divorced spouses on the public dole, Congress amended the Social Security Act by adding a new provision, 459, to the effect that, notwithstanding any contrary federal benefits may be reached to satisfy a legal obligation for child support or alimony. 42 U.S. C. 659.[8] In shortly before the issuance of the Supreme Court of California's opinion in this case, Congress added to the Social Security Act a definitional statute, 462 (c), which relates to 459 and limits "alimony" to its traditional *5 common- meaning of spousal support. That statute states specifically that "alimony" "does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." Tit. V, 501 (d),[9] II Petitioner and respondent, who are California residents, were married in Nevada in 1958. They separated in 1972. In 1975 petitioner instituted this proceeding in the Superior Court of California, County of Los Angeles, for dissolution of the marriage. California, like seven other States, by statute has a form of community property brought to our shores by the Spanish. In California the "statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after *578 dissolution, in case of surviving the other."[10] Community property includes the property earned by either spouse during the union, as well as that given to both during the marriage. See Cal. Civ. Code Ann. 687 (West 1954). It contrasts with separate property, which includes assets owned by a spouse before marriage or acquired separately by a spouse during marriage through gift. In community property States, ownership turns on the method and timing of acquisition, while the traditional view in common- States is that ownership depends on title.[11] On the theory that petitioner acquired an expectation of receiving Railroad Retirement Act benefits due in part to his labors while married, respondent (but not petitioner) in the California divorce proceeding listed that expectation as an item of community property subject to division upon dissolution of the marriage. App. 2, 3. At the time, petitioner, a railroad machinist, was aged 55. He had worked from 1942 to 1975 for the Atchison, Topeka & Santa Fe Railway, and subsequently entered the employ of the Los Angeles Union Passenger Terminal. Both jobs fell within the Act. Because petitioner had 30 years' service, the statute would permit him to receive benefits if and when he attained age 60. Respondent calculated that she was entitled to half the benefits attributable to his labor during the 14 years of their marriage, or, by her estimates, 19.6% of the total benefits to be received.[12] The couple has no children. *579 Respondent in 1975 was 53. She had worked for the preceding eight years in a factory. She had been gainfully employed for 35 years and had an expectation that upon her retirement she would be entitled to benefits under the Social Security Act. Neither petitioner nor respondent claimed that her expectation of receiving those benefits was community property. App. 2, 3. Respondent, and petitioner, too, waived their claims to spousal support. Tr. of Oral Arg. 5, 33. After its hearing, the Superior Court awarded petitioner the couple's home, in which they had a $12,828 equity, and its furnishings. Respondent was awarded an automobile and a small interest in a mutual fund. The court, however, ordered petitioner to reimburse respondent, by installment payments, for her half of the equity in the home and protected this obligation with an imposed lien in her favor on the real estate. The court ruled that no community interest existed either in petitioner's prospect of receiving Railroad Retirement Act benefits or in respondent's anticipation of benefits under the Social Security Act. App. 4. The California Court of Appeal affirmed. In re Hisquierdo, The court, noting that under this Court's Supremacy Clause cases Congress has the power to determine the character of a federally created benefit, rejected respondent's claim that petitioner's expectation of receiving Railroad Retirement Act benefits was community property. The court reasoned that, because federal pension programs may be terminated by Congress at any time, petitioner had no enforceable contract right. Respondent contended that the state court, under the decision in In re cert. denied, could determine the expected value of her interest and award her a compensating amount of other property available for distribution. The court held, however, that such a remedy would be contrary to 231m, which provides that *580 benefits are not to be "anticipated," and would frustrate the explicit and detailed terms of the Act that grant the employee a benefit separate and distinct from the nonemployee spouse's benefit that terminates upon absolute divorce. See also In re Nizenkoff, ; In re Kelley, Review was granted by the Supreme Court of California. Respondent there argued that "there is absolutely no evidence that Congress ever intended to prevent a community property state from recognizing a spouse's community interest in a Railroad Retirement Act retirement plan."[13] In a unanimous opinion that court reversed the Court of Appeal. In re Hisquierdo, Relying on its recent case[14] the Supreme Court of California held that because the benefits would flow in part from petitioner's employment during marriage, they were community property even though under federal petitioner had no enforceable contract right. Congress' decision to terminate benefits for divorced spouses, the court believed, was evidence that Congress intended to rely on traditional state- doctrines to protect them. The court rejected petitioner's contention that 231m barred respondent's claim. The court reasoned that it was intended to bar creditors, and respondent was not a creditor but a present owner. The then very recent amendment to the Social Security Act (mentioned above as the new *581 462 (c) of that Act) was not discussed. The question of remedy was left open for decision on remand. The court indicated that by awarding respondent compensating property under the doctrine of In re a court could avoid any infringement on the Act's designation of petitioner as the "individual" recipient. We granted certiorari to consider whether, under the standard of this Court's decided Supremacy Clause cases, the award to respondent impermissibly conflicts with the Railroad Retirement Act.[15] III Insofar as marriage is within temporal control, the States lay on the guiding hand. "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the s of the States and not to the s of the United States." In re Burrus, Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question. See, e. g., Ohio ex rel. On the rare occasion when state family has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has "positively required by direct enactment" that state be pre-empted. A mere conflict in words is not sufficient. State family and family-property must do "major damage" to "clear and substantial" federal interests before the Supremacy Clause will demand that state be overridden. United *582 Nevertheless, on at least four prior occasions this Court has found it necessary to forestall such an injury to federal rights by state based on community property concepts. In federal homestead which permitted a widow to patent federal land that had been entered by her husband, prevailed over a daughter's asserted inheritance of her father's expectancy that the patent would issue to him. And in a trilogy of cases, the Court held that the survivorship rules in federal savings bond and military life insurance programs override community property absent fraud or breach of trust by the decedent. ; ; This case, like those four, has to do with a conflict between federal and state rules for the allocation of a federal entitlement. The manipulation problem that concerned the Court in and however, cases in which savings bonds were purchased with community property, is not present here. Railroad Retirement Act benefits from their very inception have federal overtones. Compulsory federal taxes finance them and not just the taxes that fall on the employee. The benefits more closely parallel the land homesteaded in Because the United States owned the land, title to it could not pass in a manner contrary to federal even though a matter of that kind normally is left to the States. Here, California must defer to the federal statutory scheme for allocating Railroad Retirement Act benefits insofar as the terms of federal require. The critical terms here include a specified beneficiary protected by a flat prohibition against attachment and anticipation. In the Court interpreted a somewhat similar provision[16] to preclude *583 a division for community property -660, even though Congress had not spoken with the specificity that characterizes the Social Security Act amendments that inform our decision here. The approach must be practical. The federal nature of the benefits does not by itself proscribe the entire field of state control. Petitioner contends, as the California Court of Appeal held, that the States may not create rights to these benefits that do not exist under federal Petitioner accordingly says that, because not even petitioner "owns" benefits until Congress has determined that they be paid, the Supreme Court of California erred in describing respondent as a present owner of an expectancy in those benefits. Such rights in the abstract, however, do not necessarily cause the injury to federal that the Supremacy Clause forbids. The pertinent questions are whether the right as asserted conflicts with the express terms of federal and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition. A The first way in which respondent seeks to vindicate her community property interest, one particularly pressed at oral argument, Tr. of Oral Arg. 32, 44, is that the Superior Court would retain jurisdiction and order petitioner to pay her an appropriate portion of his benefit, or its monetary equivalent, as petitioner receives it. See In re Brown, That course, however, runs contrary to the language and purpose of 231m and would mechanically deprive petitioner of a portion of the benefit Congress, in 231d (c) (3), indicated was designed for him alone. Section 231m plays a most important role in the statutory *584 scheme. Like anti-attachment provisions generally, see ; it ensures that the benefits actually reach the beneficiary. It pre-empts all state that stands in its way. It protects the benefits from legal process "[n]otwithstanding any other of any State." Even state tax-collection s must bow to its command, for Congress added that phrase in an amendment designed in part to ensure that neither federal nor state tax collectors would encroach on the distribution of benefits.[17] It prevents the vagaries of state from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy. Congress carefully targeted the benefits created by the Railroad Retirement Act. It even embodied a community concept to an extent. The Act provides a benefit for a spouse, but the spouse need not have worked for a carrier. The spouse's sole contribution is to the marital community that supports the employee who has made railroad employment a career. Congress purposefully abandoned that theory, however, in allocating benefits upon absolute divorce. In direct language the spouse is cut off: "The entitlement of a spouse of an individual to an annuity shall end on the last day of the month preceding *585 the month in which the spouse and the individual are absolutely divorced." 45 U.S. C. 231d (c) (3). The choice was deliberate. When the Act was revised in a proposal was made to award a divorced spouse a benefit like that available to a divorced spouse under the Social Security Act. The labor-management negotiation committee, however, rejected that proposal, and Congress ratified its decision. It based its conclusion on the perilous financial state of the Railroad Retirement Account, and the need to devote funds to other[18] Congress has made a choice, and 231m protects it. It is for Congress to decide how these finite funds are to be allocated. The statutory balance is delicate. Congress has fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire. Any automatic diminution of that amount frustrates the congressional objective. By reducing benefits received, it discourages the divorced employee from retiring. And it provides the employee with an incentive to keep working, because the former spouse has no community property claim to salary earned after the marital community is dissolved. Section 231m shields the distribution of benefits from state decisions that would actually reverse the flow of incentives Congress originally intended. Respondent contends that this interpretation of the Act is manifestly unjust, and could not have been intended by *586 Congress. She suggests that her contribution to the marital community merits recompense, and she argues that, as a logical matter, Congress would not have terminated the spouse's benefit upon absolute divorce if it had thought that a divorced spouse would be totally unable to assert a state- claim against the benefits received by the employee spouse. She urges that, at least with respect to spousal claims, the Court should hold that 231m does no more than restate the Government's sovereign immunity from burdensome garnishment suits, and so has no effect on her right to require petitioner to reimburse her as he receives benefits. She notes that several courts have adopted this construction in holding that an errant spouse could be forced to pay child and spousal support upon receipt of Railroad Retirement Act payments.[19] We, however, cannot so lightly discard the settled view that anti-assignment statutes have substantive meaning. Section 231m goes far beyond garnishment. It states that the annuity shall not be subject to any "legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." Its terms make no exception for a spouse. The judicial construction on which respondent relies is a child of equity, not of In the Court held that a similar line of authority did not apply to community property claims: "Venerable and worthy as this community is, it is not, we think, as likely to justify an exception to the congressional language as specific judicial recognition of particular *587 needs, in the alimony and support cases." Now Congress has written into the same distinction drew as a matter of policy. The amendments to the Social Security Act, by way of amending the existing 459 and adding a new 462, expressly override 231m, and even facilitate garnishment for claims based on spousal support. They decline to do so, however, for community property claims. The legislative history is sparse and does not mention[20] We know, however, that the purpose of 459 was to help children and divorced spouses get off welfare. It is therefore logical to conclude that Congress, in adopting 462 (c), thought that a family's need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so. *588 B Respondent contends that she can vindicate her interest and leave the benefit scheme intact by pursuing her remedy under In re She seeks an offsetting award of presently available community property to compensate her for her interest in petitioner's expected benefits. As petitioner's counsel bluntly put it, respondent wants the house. Tr. of Oral Arg. 5. The expected value of the benefits is such that she could get it if this remedy were adopted. An offsetting award, however, would upset the statutory balance and impair petitioner's economic security just as surely as would a regular deduction from his benefit check. The harm might well be greater. Section 231m provides that payments are not to be "anticipated." Legislative history throws little light on the meaning of this word.[21] In the of trusts, however, a prohibition against anticipation is commonly understood to mean that "the interest of a sole beneficiary shall not be paid to him before a certain date." E. Griswold, Spendthrift Trusts 512, p. 583 (2d ed. 1947).[22] The *589 Railroad Retirement Act resembles a trust in certain respects. If that definition is applied here, then the offsetting award respondent seeks would improperly anticipate payment by allowing her to receive her interest before the date Congress has set for any interest to accrue. Any such anticipation threatens harm to the employee, and corresponding frustration to federal policy, over and above the mere loss of wealth caused by the offset. If, for example, a nonemployee spouse receives offsetting property, and then the employee spouse dies before collecting any benefits, the employee's heirs or beneficiaries suffer to the extent that the offset exceeds the lump-sum death benefits the Act provides. See 45 U.S. C. 231e. Similarly, if the employee leaves the industry before retirement, and so fails to meet the "current connection with the railroad industry" requirement for certain supplemental benefits, see 45 U.S. C. 231a (b) (1) (iv), the employee never will fully regain the amount of the offset. A third possibility, of course, is that Congress might alter the terms of the Act. In Congress eliminated certain double benefits accruing after 1982.[23] If past California property settlements had been based on those benefits, then the change in the Act would have worked a multiple penalty on future recipients. By barring lump-sum community property settlements based on mere expectations, the prohibition against anticipation prevents such an obvious frustration of congressional purpose. It also preserves congressional freedom to amend the Act, and so serves much the same function as the frequently stated understanding that programs of this nature convey no future rights and so may be changed without *590 taking property in violation of the Fifth Amendment. See ; ; (CA7), cert. denied, IV We are mindful that retirement benefits are increasingly important in American life and that divorce is becoming more frequent. The burden of marital dissolution may be particularly onerous for a spouse who, unlike respondent, has no expectation of receiving his or her own social security benefits. The 1975 and amendments, however, both permit and encourage garnishment of Railroad Retirement Act benefits for the of spousal support, and those benefits will be claimed by those who are in need. Congress may find that the distinction it has drawn is undesirable. Indeed, Congress recently has passed special legislation to allow garnishment of Civil Service Retirement benefits for community property See Stat. 600. For the present, however, the community property interest that respondent seeks conflicts with 231m, promises to diminish that portion of the benefit Congress has said should go to the retired worker alone,[24] and threatens to penalize one whom Congress has sought to protect. It thus causes the kind of injury to federal interests that the Supremacy Clause forbids. It is not the province of state courts to strike a balance different from the one Congress has struck. *591 The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE STEWART, with whom MR.

Justice Ginsburg

concurring

Montana v. Egelhoff

https://www.courtlistener.com/opinion/118043/montana-v-egelhoff/

https://www.courtlistener.com/api/rest/v3/clusters/118043/

1995-070

The Court divides in this case on a question of characterization. The State's law, Mont. Code Ann. § 45-2-203 (1995), *57 prescribes that voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense." For measurement against federal restraints on state action, how should we type that prescription? If § 45-2-203 is simply a rule designed to keep out "relevant, exculpatory evidence," Justice O'Connor maintains, post, at 67, Montana's law offends due process. If it is, instead, a redefinition of the mentalstate element of the offense, on the other hand, Justice O'Connor's due process concern "would not be at issue," post, at 71, for "[a] state legislature certainly has the authority to identify the elements of the offenses it wishes to punish," post, at 64, and to exclude evidence irrelevant to the crime it has defined. Beneath the labels (rule excluding evidence or redefinition of the offense) lies the essential question: Can a State, without offense to the Federal Constitution, make the judgment that two people are equally culpable where one commits an act stone sober, and the other engages in the same conduct after his voluntary intoxication has reduced his capacity for self-control? For the reasons that follow, I resist categorizing § 45-2-203 as merely an evidentiary prescription, but join the Court's judgment refusing to condemn the Montana statute as an unconstitutional enactment. Section 45-2-203 does not appear in the portion of Montana's Code containing evidentiary rules (Title 26), the expected placement of a provision regulating solely the admissibility of evidence at trial. Instead, Montana's intoxication statute appears in Title 45 ("Crimes"), as part of a chapter entitled "General Principles of Liability." Mont. Code Ann., Tit. 45, ch. 2 (1995). No less than adjacent provisions governing duress and entrapment, § 45-2-203 embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions. *58 As urged by Montana and its amici, § 45-2-203 "extract[s] the entire subject of voluntary intoxication from the mens rea inquiry," Reply Brief for Petitioner 2, thereby rendering evidence of voluntary intoxication logically irrelevant to proof of the requisite mental state. Thus, in a prosecution for deliberate homicide, the State need not prove that the defendant "purposely or knowingly cause[d] the death of another," Mont. Code Ann. § 45-5-102(a) (1995), in a purely subjective sense. To obtain a conviction, the prosecution must prove only that (1) the defendant caused the death of another with actual knowledge or purpose, or (2) that the defendant killed "under circumstances that would otherwise establish knowledge or purpose `but for' [the defendant's] voluntary intoxication." Brief for American Alliance for Rights and Responsibilities et al. as Amici Curiae 6. See also Brief for Petitioner 35-36; Brief for United States as Amicus Curiae 10-12. Accordingly, § 45-2-203 does not "lighte[n] the prosecution's burden to prove [the] mentalstate element beyond a reasonable doubt," as Justice O'Connor suggests, post, at 64, for "[t]he applicability of the reasonable-doubt standard . . . has always been dependent on how a State defines the offense that is charged," Patterson v. New York, 432 U.S. 197, 211, n. 12 (1977). Comprehended as a measure redefining mens rea, § 45-2-203 encounters no constitutional shoal. States enjoy wide latitude in defining the elements of criminal offenses, see, e. g., Martin v. Ohio, 480 U.S. 228, 232 (1987); Patterson, 432 U. S., at 201-202, particularly when determining "the extent to which moral culpability should be a prerequisite to conviction of a crime," Powell v. Texas, 392 U.S. 514, 545 (1968) (Black, J., concurring). When a State's power to define criminal conduct is challenged under the Due Process Clause, we inquire only whether the law "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson, 432 U. S., at 202 (internal quotation marks omitted). Defining mens *59 rea to eliminate the exculpatory value of voluntary intoxication does not offend a "fundamental principle of justice," given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. See ante, at 43-49; see also post, at 73 (Souter, J., dissenting) ("[A] State may so define the mental element of an offense that evidence of a defendant's voluntary intoxication at the time of commission does not have exculpatory relevance and, to that extent, may be excluded without raising any issue of due process."). Other state courts have upheld statutes similar to § 45-2-203, not simply as evidentiary rules, but as legislative redefinitions of the mental-state element. See State v. Souza, 72 Haw. 246, 249, 813 P.2d 1384, 1386 (1991) ("legislature was entitled to redefine the mens rea element of crimes and to exclude evidence of voluntary intoxication to negate state of mind"); State v. Ramos, 133 Ariz. 4, 6, 648 P.2d 119, 121 (1982) ("Perhaps the state of mind which needs to be proven here is a watered down mens rea; however, this is the prerogative of the legislature."); Commonwealth v. Rumsey, 309 Pa. Super. 137, 139, 454 A.2d 1121, 1122 (1983) (quoting Powell, 392 U. S., at 536 (plurality opinion)) ("Redefinition of the kind and quality of mental activity that constitutes the mens rea element of crimes is a permissible part of the legislature's role in the `constantly shifting adjustment between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.' "). Legislation of this order, if constitutional in Arizona, Hawaii, and Pennsylvania, ought not be declared unconstitutional by this Court when enacted in Montana. If, as the plurality, Justice O'Connor, and Justice Souter agree, it is within the legislature's province to instruct courts to treat a sober person and a voluntarily intoxicated person as equally responsible for conduct—to place a voluntarily intoxicated person on a level with a sober person— then the Montana law is no less tenable under the Federal *60 Constitution than are the laws, with no significant difference in wording, upheld in sister States.[1] The Montana Supreme Court did not disagree with the courts of other States; it simply did not undertake an analysis in line with the principle that legislative enactments plainly capable of a constitutional construction ordinarily should be given that construction. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988); State v. Lilburn, 265 Mont. 258, 266, 875 P.2d 1036, 1041 (1994). The Montana Supreme Court's judgment, in sum, strikes down a statute whose text displays no constitutional infirmity. If the Montana court considered its analysis forced by this Court's precedent,[2] it is proper for this Court to say *61 what prescriptions federal law leaves to the States,[3] and thereby dispel confusion to which we may have contributed, and attendant state-court misperception.

The Court divides in this case on a question of characterization. The State's law, (1995), *57 prescribes that voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense." For measurement against federal restraints on state action, how should we type that prescription? If 45-2-203 is simply a rule designed to keep out "relevant, exculpatory evidence," Justice O'Connor maintains, post, at 7, Montana's law offends due process. If it is, instead, a redefinition of the mentalstate element of the offense, on the other hand, Justice O'Connor's due process concern "would not be at issue," post, at 71, for "[a] state legislature certainly has the authority to identify the elements of the offenses it wishes to punish," post, at 4, and to exclude evidence irrelevant to the crime it has defined. Beneath the labels (rule excluding evidence or redefinition of the offense) lies the essential question: Can a State, without offense to the Federal Constitution, make the judgment that two people are equally culpable where one commits an act stone sober, and the other engages in the same conduct after his voluntary intoxication has reduced his capacity for self-control? For the reasons that follow, I resist categorizing 45-2-203 as merely an evidentiary prescription, but join the Court's judgment refusing to condemn the Montana statute as an unconstitutional enactment. Section 45-2-203 does not appear in the portion of Montana's Code containing evidentiary rules (Title 2), the expected placement of a provision regulating solely the admissibility of evidence at trial. Instead, Montana's intoxication statute appears in Title 45 ("Crimes"), as part of a chapter entitled "General Principles of Liability." Mont. Code Ann., Tit. 45, ch. 2 (1995). No less than adjacent provisions governing duress and entrapment, 45-2-203 embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions. *58 As urged by Montana and its amici, 45-2-203 "extract[s] the entire subject of voluntary intoxication from the mens rea inquiry," Reply Brief for Petitioner 2, thereby rendering evidence of voluntary intoxication logically irrelevant to proof of the requisite mental state. Thus, in a prosecution for deliberate homicide, the State need not prove that the defendant "purposely or knowingly cause[d] the death of another," Mont. Code Ann. 45-5-102(a) (1995), in a purely subjective sense. To obtain a conviction, the prosecution must prove only that (1) the defendant caused the death of another with actual knowledge or purpose, or (2) that the defendant killed "under circumstances that would otherwise establish knowledge or purpose `but for' [the defendant's] voluntary intoxication." Brief for American Alliance for Rights and Responsibilities et al. as Amici Curiae See also Brief for Petitioner 35-3; Brief for United States as Amicus Curiae 10-12. Accordingly, 45-2-203 does not "lighte[n] the prosecution's burden to prove [the] mentalstate element beyond a reasonable doubt," as Justice O'Connor suggests, post, at 4, for "[t]he applicability of the reasonable-doubt standard has always been dependent on how a State defines the offense that is charged," Comprehended as a measure redefining mens rea, 45-2-203 encounters no constitutional shoal. States enjoy wide latitude in defining the elements of criminal offenses, see, e. g., ; -202, particularly when determining "the extent to which moral culpability should be a prerequisite to conviction of a crime," When a State's power to define criminal conduct is challenged under the Due Process Clause, we inquire only whether the law "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Defining mens *59 rea to eliminate the exculpatory value of voluntary intoxication does not offend a "fundamental principle of justice," given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. See ante, at 43-49; see also post, at 73 (Souter, J., dissenting) ("[A] State may so define the mental element of an offense that evidence of a defendant's voluntary intoxication at the time of commission does not have exculpatory relevance and, to that extent, may be excluded without raising any issue of due process."). Other state courts have upheld statutes similar to 45-2-203, not simply as evidentiary rules, but as legislative redefinitions of the mental-state element. See ; 48 P.2d 119, ; 454 A.2d 1, (quoting 392 U. S., at 53 ) ("Redefinition of the kind and quality of mental activity that constitutes the mens rea element of crimes is a permissible part of the legislature's role in the `constantly shifting adjustment between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.' "). Legislation of this order, if constitutional in Arizona, Hawaii, and Pennsylvania, ought not be declared unconstitutional by this Court when enacted in Montana. If, as the plurality, Justice O'Connor, and Justice Souter agree, it is within the legislature's province to instruct courts to treat a sober person and a voluntarily intoxicated person as equally responsible for conduct—to place a voluntarily intoxicated person on a level with a sober person— then the Montana law is no less tenable under the Federal *0 Constitution than are the laws, with no significant difference in wording, upheld in sister States.[1] The Montana Supreme Court did not disagree with the courts of other States; it simply did not undertake an analysis in line with the principle that legislative enactments plainly capable of a constitutional construction ordinarily should be given that construction. See Edward J. DeBartolo 485 U.S. 58, ; 25 Mont. 258, 2, 875 P.2d 103, The Montana Supreme Court's judgment, in sum, strikes down a statute whose text displays no constitutional infirmity. If the Montana court considered its analysis forced by this Court's precedent,[2] it is proper for this Court to say *1 what prescriptions federal law leaves to the States,[3] and thereby dispel confusion to which we may have contributed, and attendant state-court misperception.

Justice Stewart

majority

Greer v. Spock

https://www.courtlistener.com/opinion/109406/greer-v-spock/

https://www.courtlistener.com/api/rest/v3/clusters/109406/

1975-060

The Fort Dix Military Reservation is a United States Army post located in a predominantly rural area of central New Jersey. Its primary mission is to provide basic combat training for newly inducted Army personnel. Accordingly, most of its 55 square miles are devoted to military training activities. The Federal Government exercises exclusive jurisdiction over the entire area within Fort Dix, including the state and county roads that pass through it.[1] Civilian vehicular traffic is permitted on paved roads within the reservation, and civilian pedestrian traffic is permitted on both roads and footpaths. Military police regularly patrol the roads within the reservation, and they occasionally stop civilians and ask them the reason for their presence. Signs posted on the roads leading into the reservation state: "All vehicles are subject to search while on the Fort Dix Military Reservation" and "Soliciting prohibited unless approved by the commanding general." The main entrances to Fort Dix are not normally guarded, and a sign at one of the entrances says "Visitors Welcome." Civilians are freely permitted to visit unrestricted areas of the reservation. *831 Civilian speakers have occasionally been invited to the base to address military personnel. The subjects of their talks have ranged from business management to drug abuse. Visiting clergymen have, by invitation, participated in religious services at the base chapel. Theatrical exhibitions and musical productions have also been presented on the base. Speeches and demonstrations of a partisan political nature, however, are banned by Fort Dix Reg. 210-26 (1968), which provides that "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation." The regulation has been rigidly enforced: Prior to this litigation, no political campaign speech had ever been given at Fort Dix. Restrictions are also placed on another type of expressive activity. Fort Dix Reg. 210-27 (1970) provides that "[t]he distribution or posting of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies . . . is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters."[2] *832 In 1972, the respondents Benjamin Spock and Julius Hobson were the candidates of the People's Party for the offices of President and Vice President of the United States, and Linda Jenness and Andrew Pulley were the candidates of the Socialist Workers Party for the same offices. On September 9, 1972, Spock, Hobson, Jenness, and Pulley wrote a joint letter to Major General Bert A. David, then commanding officer of Fort Dix, informing him of their intention to enter the reservation on September 23, 1972, for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. On September 18, 1972, General David rejected the candidates' *833 request, relying on Fort Dix Regs. 210-26 and 210-27.[3] Four of the other respondents, Ginaven, Misch, Hardy, and Stanton, were evicted from Fort Dix on various occasions between 1968 and 1972 for distributing literature not previously approved pursuant to Fort Dix Reg. 210-27. Each was barred from re-entering Fort Dix and advised that re-entry could result in criminal prosecution.[4] On September 29, 1972, the respondents filed this suit in the United States District Court for the District of *834 New Jersey to enjoin the enforcement of the Fort Dix regulations governing political campaigning and the distribution of literature, upon the ground that the regulations violated the First and Fifth Amendments of the Constitution. The District Court denied a preliminary injunction, Spock v. David, 349 F. Supp. 179, but the Court of Appeals reversed that order and directed that preliminary injunctive relief be granted to the respondents Spock, Hobson, Jenness, and Pulley. Spock v. David, 469 F.2d 1047.[5] Pursuant to this judgment the respondent Spock conducted a campaign rally at a Fort Dix parking lot on November 4, 1972. The District Court subsequently issued a permanent injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public,[6] and the Court of Appeals affirmed this final judgment. Spock v. David, 502 F.2d 953. We granted certiorari to consider the important federal questions presented. 421 U.S. 908. In reaching the conclusion that the respondents could not be prevented from entering Fort Dix for the purpose of making political speeches or distributing leaflets, the Court of Appeals relied primarily on this Court's per curiam opinion in Flower v. United States, 407 U.S. 197. *835 In the Flower case the Court summarily reversed the conviction of a civilian for entering a military reservation after his having been ordered not to do so. At the time of his arrest the petitioner in that case had been "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas." Ibid. The Court's decision reversing the conviction, made without the benefit of briefing or oral argument, rested upon the premise that " `New Braunfels Avenue was a completely open street,' " and that the military had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." Id., at 198. Under those circumstances, the "base commandant" could "no more order petitioner off this public street because he was distributing leaflets than could the city police order any leaflete[e]r off any public street." Ibid. The decision in Flower was thus based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers—"any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue." That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in Hague v. CIO, 307 U.S. 496, 515-516: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been *836 used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." See, e. g., Niemotko v. Maryland, 340 U.S. 268; Saia v. New York, 334 U.S. 558, 561 n. 2; Murdock v. Pennsylvania, 319 U.S. 105; Jamison v. Texas, 318 U.S. 413, 416; Cantwell v. Connecticut, 310 U.S. 296; Schneider v. State, 308 U.S. 147. The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48. "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Id., at 47. See also Cox v. *837 Louisiana, 379 U.S. 559, 560-564. Cf. Pell v. Procunier, 417 U.S. 817. The Court of Appeals in the present case did not find, and the respondents do not contend, that the Fort Dix authorities had abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation. The record is, in fact, indisputably to the contrary.[7] The Flower decision thus does not support the judgment of the Court of Appeals in this case. Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had "abandoned any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue," then the implication surely is that a different result must obtain on a military reservation where the authorities have not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history. One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence,"[8] and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable.[9] In short, it *838 is "the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17. And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum. A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command." Cafeteria Workers v. McElroy, 367 U.S. 886, 893. The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false. The respondents, therefore, had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix, and it follows that Fort Dix Regs. 210-26 and 210-27 are not constitutionally invalid on their face. These regulations, moreover, were not unconstitutionally applied in the circumstances disclosed by the record in the present case.[10] With respect to Reg. 210-26, there is no claim that the military authorities discriminated in any way among candidates for public office based upon the candidates' *839 supposed political views.[11] It is undisputed that, until the appearance of the respondent Spock at Fort Dix on November 4, 1972, as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there. What the record shows, therefore, is a considered Fort Dix policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with partisan political campaigns of any kind. Under such a policy members of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates. Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history.[12] And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue. *840 With respect to Reg. 210-27, it is to be emphasized that it does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The only publications that a military commander may disapprove are those that he finds constitute "a clear danger to [military] loyalty, discipline, or morale," and he "may not prevent distribution of a publication simply because he does not like its contents," or because it "is critical—even unfairly critical—of government policies or officials . . . ."[13] There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command. It is possible, of course, that Reg. 210-27 might in the future be applied irrationally, invidiously, or arbitrarily. But none of the respondents in the present case even submitted any material for review. The noncandidate respondents were excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution. This case, therefore, simply does not raise any question of unconstitutional application of the regulation to any specific situation. Cf. Rescue Army v. Municipal Court, 331 U.S. 549. For the reasons set out in this opinion the judgment is reversed. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.

The Fort Dix Military Reservation is a United States Army post located in a predominantly rural area of central New Jersey. Its primary mission is to provide basic combat training for newly inducted Army personnel. Accordingly, most of its 55 square miles are devoted to military training activities. The Federal Government exercises exclusive jurisdiction over the entire area within Fort Dix, including the state and county roads that pass through it.[1] Civilian vehicular traffic is permitted on paved roads within the reservation, and civilian pedestrian traffic is permitted on both roads and footpaths. Military police regularly patrol the roads within the reservation, and they occasionally stop civilians and ask them the reason for their presence. Signs posted on the roads leading into the reservation state: "All vehicles are subject to search while on the Fort Dix Military Reservation" and "Soliciting prohibited unless approved by the commanding general." The main entrances to Fort Dix are not normally guarded, and a sign at one of the entrances says "Visitors Welcome." Civilians are freely permitted to visit unrestricted areas of the reservation. *831 Civilian speakers have occasionally been invited to the base to address military personnel. The subjects of their talks have ranged from business management to drug abuse. Visiting clergymen have, by invitation, participated in religious services at the base chapel. Theatrical exhibitions and musical productions have also been presented on the base. Speeches and demonstrations of a partisan political nature, however, are banned by Fort Dix Reg. 210-26 (1968), which provides that "[d]emonstrations, picketing, sit-ins, protest marches, political speeches and similar activities are prohibited and will not be conducted on the Fort Dix Military Reservation." The regulation has been rigidly enforced: Prior to this litigation, no political campaign speech had ever been given at Fort Dix. Restrictions are also placed on another type of expressive activity. Fort Dix Reg. 210-27 (1970) provides that "[t]he distribution or posting of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies is prohibited on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters."[2] *832 In 1972, the respondents Benjamin Spock and Julius Hobson were the candidates of the People's Party for the offices of President and Vice President of the United States, and Linda Jenness and Andrew Pulley were the candidates of the Socialist Workers Party for the same offices. On September 9, 1972, Spock, Hobson, Jenness, and Pulley wrote a joint letter to Major General Bert A. David, then commanding officer of Fort Dix, informing him of their intention to enter the reservation on September 23, 1972, for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. On September 18, 1972, General David rejected the candidates' *833 request, relying on Fort Dix Regs. 210-26 and 210-27.[3] Four of the other respondents, Ginaven, Misch, Hardy, and Stanton, were evicted from Fort Dix on various occasions between 1968 and 1972 for distributing literature not previously approved pursuant to Fort Dix Reg. 210-27. Each was barred from re-entering Fort Dix and advised that re-entry could result in criminal prosecution.[4] On September 29, 1972, the respondents filed this suit in the United States District Court for the District of *834 New Jersey to enjoin the enforcement of the Fort Dix regulations governing political campaigning and the distribution of literature, upon the ground that the regulations violated the First and Fifth Amendments of the Constitution. The District Court denied a preliminary injunction, but the Court of Appeals reversed that order and directed that preliminary injunctive relief be granted to the respondents Spock, Hobson, Jenness, and Pulley.[5] Pursuant to this judgment the respondent Spock conducted a campaign rally at a Fort Dix parking lot on November 4, 1972. The District Court subsequently issued a permanent injunction prohibiting the military authorities from interfering with the making of political speeches or the distribution of leaflets in areas of Fort Dix open to the general public,[6] and the Court of Appeals affirmed this final judgment. We granted certiorari to consider the important federal questions presented. In reaching the conclusion that the respondents could not be prevented from entering Fort Dix for the purpose of making political speeches or distributing leaflets, the Court of Appeals relied primarily on this Court's per curiam opinion in *835 In the Flower case the Court summarily reversed the conviction of a civilian for entering a military reservation after his having been ordered not to do so. At the time of his arrest the petitioner in that case had been "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas." The Court's decision reversing the conviction, made without the benefit of briefing or oral argument, rested upon the premise that " `New Braunfels Avenue was a completely open street,' " and that the military had "abandoned any claim that it has special interests in who walks, talks, or distributes leaflets on the avenue." Under those circumstances, the "base commandant" could "no more order petitioner off this public street because he was distributing leaflets than could the city police order any leaflete[e]r off any public street." The decision in Flower was thus based upon the Court's understanding that New Braunfels Avenue was a public thoroughfare in San Antonio no different from all the other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leafleteers—"any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue." That being so, the Court perceived the Flower case as one simply falling under the long-established constitutional rule that there cannot be a blanket exclusion of First Amendment activity from a municipality's open streets, sidewalks, and parks for the reasons stated in the familiar words of Mr. Justice Roberts in 515-516: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been *836 used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." See, e. g., ; 561 n. 2; ; ; ; The Court of Appeals was mistaken, therefore, in thinking that the Flower case is to be understood as announcing a new principle of constitutional law, and mistaken specifically in thinking that Flower stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." See also Cf. The Court of Appeals in the present case did not find, and the respondents do not contend, that the Fort Dix authorities had abandoned any claim of special interest in regulating the distribution of unauthorized leaflets or the delivery of campaign speeches for political candidates within the confines of the military reservation. The record is, in fact, indisputably to the contrary.[7] The Flower decision thus does not support the judgment of the Court of Appeals in this case. Indeed, the Flower decision looks in precisely the opposite direction. For if the Flower case was decided the way it was because the military authorities had "abandoned any claim [of] special interests in who walks, talks, or distributes leaflets on the avenue," then the implication surely is that a different result must obtain on a military reservation where the authorities have not abandoned such a claim. And if that is not the conclusion clearly to be drawn from Flower, it most assuredly is the conclusion to be drawn from almost 200 years of American constitutional history. One of the very purposes for which the Constitution was ordained and established was to "provide for the common defence,"[8] and this Court over the years has on countless occasions recognized the special constitutional function of the military in our national life, a function both explicit and indispensable.[9] In short, it *838 is "the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. And it is consequently the business of a military installation like Fort Dix to train soldiers, not to provide a public forum. A necessary concomitant of the basic function of a military installation has been "the historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command." Cafeteria The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false. The respondents, therefore, had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix, and it follows that Fort Dix Regs. 210-26 and 210-27 are not constitutionally invalid on their face. These regulations, moreover, were not unconstitutionally applied in the circumstances disclosed by the record in the present case.[10] With respect to Reg. 210-26, there is no claim that the military authorities discriminated in any way among candidates for public office based upon the candidates' *839 supposed political views.[11] It is undisputed that, until the appearance of the respondent Spock at Fort Dix on November 4, 1972, as a result of a court order, no candidate of any political stripe had ever been permitted to campaign there. What the record shows, therefore, is a considered Fort Dix policy, objectively and evenhandedly applied, of keeping official military activities there wholly free of entanglement with partisan political campaigns of any kind. Under such a policy members of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates. Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history.[12] And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue. *840 With respect to Reg. 210-27, it is to be emphasized that it does not authorize the Fort Dix authorities to prohibit the distribution of conventional political campaign literature. The only publications that a military commander may disapprove are those that he finds constitute "a clear danger to [military] loyalty, discipline, or morale," and he "may not prevent distribution of a publication simply because he does not like its contents," or because it "is critical—even unfairly critical—of government policies or officials"[13] There is nothing in the Constitution that disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command. It is possible, of course, that Reg. 210-27 might in the future be applied irrationally, invidiously, or arbitrarily. But none of the respondents in the present case even submitted any material for review. The noncandidate respondents were excluded from Fort Dix because they had previously distributed literature there without even attempting to obtain approval for the distribution. This case, therefore, simply does not raise any question of unconstitutional application of the regulation to any specific situation. Cf. Rescue For the reasons set out in this opinion the judgment is reversed. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.

Justice Stevens

majority

North Dakota v. United States

https://www.courtlistener.com/opinion/112429/north-dakota-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/112429/

1989-080

The United States and the State of North Dakota exercise concurrent jurisdiction over the Grand Forks Air Force Base and the Minot Air Force Base. Each sovereign has its own separate regulatory objectives with respect to the area over which it has authority. The Department of Defense (DoD), which operates clubs and package stores located on those bases, has sought to reduce the price that it pays for alcoholic beverages sold on the bases by instituting a system of competitive bidding. The State, which has established a liquor distribution system in order to promote temperance and ensure orderly market conditions, wishes to protect the integrity of that system by requiring out-of-state shippers to file monthly reports and to affix a label to each bottle of liquor sold to a federal enclave for domestic consumption. The clash between the State's interest in preventing the diversion of liquor and the federal interest in obtaining the lowest possible price forms the basis for the Federal Government's Supremacy Clause and pre-emption challenges to the North Dakota regulations. *427 I The United States sells alcoholic beverages to military personnel and their families at clubs and package stores on its military bases. The military uses revenue from these sales to support a morale, welfare, and recreation program for personnel and their families. See 32 CFR § 261.3 (1989); DoD Directive 1015.1 (Aug. 19, 1981). Before December 1985, no federal statute governed the purchase of liquor for these establishments. From December 19, 1985, to October 19, 1986, federal law required military bases to purchase alcoholic beverages only within their home State. See Pub. L. 99-190, § 8099, 99 Stat. 1219. Effective October 30, 1986, Congress eliminated the requirement that the military purchase liquor from within the State and directed that distilled spirits be "procured from the most competitive source, price and other factors considered." Pub. L. 99-661, § 313, 100 Stat. 3853, 10 U.S. C. § 2488(a).[1] In accordance with this statute, the DoD has developed a joint-military purchasing program to buy liquor in bulk directly from the Nation's primary distributors who offer the lowest possible prices. Purchases are made pursuant to a DoD regulation which provides: " `The Department of Defense shall cooperate with local, state, and federal officials to the degree that their duties relate to the provisions of this chapter. However, the purchase of all alcoholic beverages for resale at any camp, post, station, base, or other DoD installation within the United States shall be in such a manner and under such conditions as shall obtain for the government the most advantageous contract, price and other considered factors. These other factors shall not be construed as meaning any submission to state control, nor shall cooperation *428 be construed or represented as an admission of any legal obligation to submit to state control, pay state or local taxes, or purchase alcoholic beverages within geographical boundaries or at prices or from suppliers prescribed by any state.' " 32 CFR § 261.4 (1989). Since long before the enactment of the most recent procurement statute, the State of North Dakota has regulated the importation and distribution of alcoholic beverages within its borders. See N. D. Cent. Code ch. 5 (1987 and Supp. 1989). Under the State's regulatory system, there are three levels of liquor distributors: out-of-state distillers/suppliers, state-licensed wholesalers, and state-licensed retailers. Distillers/suppliers may sell to only licensed wholesalers or federal enclaves. N. D. Admin. Code § 84-02-01-05(2) (1986). Licensed wholesalers, in turn, may sell to licensed retailers, other licensed wholesalers, and federal enclaves. N. D. Cent. Code § 5-03-01 (1987). Taxes are imposed at both levels of distribution. N. D. Cent. Code § 5-03-07 (1987); N. D. Cent. Code ch. 57-39.2 (Supp. 1989). In order to monitor the importation of liquor, the State since 1978 has required all persons bringing liquor into the State to file monthly reports documenting the volume of liquor they have imported. The reporting regulation provides: "All persons sending or bringing liquor into North Dakota shall file a North Dakota Schedule A Report of all shipments and returns for each calender month with the state treasurer. The report must be postmarked on or before the fifteenth day of the following month." N. D. Admin. Code § 84-02-01-05(1) (1986). Since 1986, the State has also required out-of-state distillers who sell liquor directly to a federal enclave to affix labels to each individual item, indicating that the liquor is for domestic consumption only within the federal enclave. The labels may be purchased from the state treasurer for a small sum or printed by the distillers/suppliers themselves according *429 to a state-approved format. App. 34. The labeling regulation provides: "All liquor destined for delivery to a federal enclave in North Dakota for domestic consumption and not transported through a licensed North Dakota wholesaler for delivery to such bona fide federal enclave in North Dakota shall have clearly identified on each individual item that such shall be for consumption within the federal enclave exclusively. Such identification must be in a form and manner prescribed by the state treasurer." N. D. Admin. Code § 84-02-01-05(7) (1986). Within the State of North Dakota, the United States operates two military bases: Grand Forks Air Force Base and Minot Air Force Base. The State and Federal Government exercise concurrent jurisdiction over both.[2] Shortly after the effective date of the procurement statute permitting the military to make purchases from out of state, the state treasurer conducted a meeting with out-of-state suppliers to explain the labeling and reporting requirements. App. 34. Five out-of-state distillers and importers thereupon informed federal military procurement officials that they would not ship liquor to the North Dakota bases because of the burden of complying with the North Dakota regulations.[3] A sixth supplier, Kobrand Importers, Inc., increased its prices from between $0.85 and $20.50 per case to reflect the cost of labeling and reporting. *430 The United States instituted this action in the United States District Court for the District of North Dakota seeking declaratory and injunctive relief against the application of the State's regulations to liquor destined for federal enclaves. The District Court denied the United States' cross-motion for summary judgment and granted the States' motion. The court reasoned that there was no conflict between the state and federal regulations because the state regulations did not prevent the Government from obtaining beverages at the "lowest cost." 675 F. Supp. 555, 557 (1987). A divided United States Court of Appeals for the Eighth Circuit reversed. 856 F.2d 1107 (1988). While recognizing that "nothing in the record compels us to believe that the regulations are a pretext to require in-state purchases," id., at 1113, the majority held that the regulations impermissibly made out-of-state distillers less competitive with local wholesalers. Ibid. Chief Judge Lay argued in dissent that the effect on the Federal Government was a permissible incident of regulations passed pursuant to the State's powers under the Twenty-first Amendment. Id., at 1115-1116. We noted probable jurisdiction, 489 U.S. 1095 (1989), and now reverse. II The Court has considered the power of the States to pass liquor control regulations that burden the Federal Government in four cases since the ratification of the Twenty-first Amendment.[4] See Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964); United States v. Mississippi Tax Comm'n, 412 U.S. 363 (1973) (Mississippi Tax Comm'n I); United States v. Mississippi Tax Comm'n, 421 U.S. 599 (1975) (Mississippi Tax Comm'n II); see also Johnson v. *431 Yellow Cab Transit Co., 321 U.S. 383 (1944). In each of those cases, we concluded that the State has no authority to regulate in an area or over a transaction that fell outside of its jurisdiction. In Collins, we held that the Twenty-first Amendment did not give the States the power to regulate the use of alcohol within a national park over which the Federal Government had exclusive jurisdiction. In Hostetter, we held that the Twenty-first Amendment conferred no authority to license the sale of tax-free liquors at an airport for delivery to foreign destinations made under the supervision of the United States Bureau of Customs. Mississippi Tax Comm'n I held that the State had no authority to regulate a transaction between an out-of-state liquor supplier and a federal military base within the exclusive federal jurisdiction. And, in Mississippi Tax Comm'n II, we held that the State has no authority to tax directly a federal instrumentality on an enclave over which the United States exercised concurrent jurisdiction. At the same time, however, within the area of its jurisdiction, the State has "virtually complete control" over the importation and sale of liquor and the structure of the liquor distribution system. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980); see also Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984); California Board of Equalization v. Young's Market Co., 299 U.S. 59 (1936). The Court has made clear that the States have the power to control shipments of liquor during their passage through their territory and to take appropriate steps to prevent the unlawful diversion of liquor into their regulated intrastate markets. In Hostetter, we stated that our decision in Collins, striking down the California Alcoholic Beverage Control Act as applied to an exclusive federal reservation, might have been otherwise if "California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing *432 unlawful diversion into her territory." 377 U.S., at 333. We found that the state licensing law there under attack was unlawful because New York "ha[d] not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this case does not involve `measures aimed at preventing unlawful diversion or use of alcoholic beverages within New York.' 212 F. Supp., at 386." Id., at 333-334. In Mississippi Tax Comm'n I, supra, after holding that the State could not impose its normal markup on sales to the military bases, we added that "a State may, in the absence of conflicting federal regulation, properly exercise its police powers to regulate and control such shipments during their passage through its territory insofar as necessary to prevent the `unlawful diversion' of liquor `into the internal commerce of the State.' " 412 U.S., at 377-378 (citations omitted). The two North Dakota regulations fall within the core of the State's power under the Twenty-first Amendment. In the interest of promoting temperance, ensuring orderly market conditions, and raising revenue, the State has established a comprehensive system for the distribution of liquor within its borders. That system is unquestionably legitimate. See Carter v. Virginia, 321 U.S. 131 (1944); California Board of Equalization v. Young's Market Co., 299 U.S. 59 (1936). The requirements that an out-of-state supplier which transports liquor into the State affix a label to each bottle of liquor destined for delivery to a federal enclave and that it report the volume of liquor it has transported are necessary components of the regulatory regime. Because liquor sold at Grand Forks and Minot Air Force Bases has been purchased directly from out-of-state suppliers, neither the markup nor the state taxes paid by liquor wholesalers and retailers in North Dakota is reflected in the military purchase price. Moreover, the federal enclaves are not governed by *433 state laws with respect to the sale of intoxicants; the military establishes the type of liquor it sells, the minimum age of buyers, and the days and times its package stores will be open. The risk of diversion into the retail market and disruption of the liquor distribution system is thus both substantial and real.[5] It is necessary for the State to record the volume of liquor shipped into the State and to identify those products which have not been distributed through the State's liquor distribution system. The labeling and reporting requirements unquestionably serve valid state interests.[6] Given the special protection afforded to state liquor control policies by the Twenty-first Amendment, they are supported by a strong presumption of validity and should not be set aside lightly. See, e. g., Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 714. *434 III State law may run afoul of the Supremacy Clause in two distinct ways: The law may regulate the Government directly or discriminate against it, see McCulloch v. Maryland, 4 Wheat. 316, 425-437 (1819), or it may conflict with an affirmative command of Congress. See Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); see also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 712-713 (1985). The Federal Government's attack on the regulations is based on both grounds of invalidity. The Government argues that the state provisions governing the distribution of liquor by out-of-state shippers "regulate" governmental actions and are therefore invalid directly under the Supremacy Clause. The argument is unavailing. State tax laws, licensing provisions, contract laws, or even "a statute or ordinance regulating the mode of turning at the corner of streets," Johnson v. Maryland, 254 U.S. 51, 56 (1920), no less than the reporting and labeling regulations at issue in this case, regulate federal activity in the sense that they make it more costly for the Government to do its business. At one time, the Court struck down many of these state regulations, see Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 222 (1928) (state tax on military contractor); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (tax on federal employee); Gillespie v. Oklahoma, 257 U.S. 501 (1922) (tax on lease of federal property); Weston v. City Council of Charleston, 2 Pet. 449 (1829) (tax on federal bond), on the theory that they interfered with "the constitutional means which have been legislated by the government of the United States to carry into effect its powers." Dobbins, 16 Pet., at 449. Over 50 years ago, however, the Court decisively rejected the argument that any state regulation which indirectly regulates the Federal Government's activity is unconstitutional, see James v. Dravo Contracting Co., 302 U.S. 134 (1937), and that view has now been "thoroughly *435 repudiated." South Carolina v. Baker, 485 U.S. 505, 520 (1988); see also California Board of Equalization v. Sierra Summit, Inc., 490 U.S. 844, 848 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 174 (1989). The Court has more recently adopted a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign's legislative authority and respectful of the primary role of Congress in resolving conflicts between the National and State Governments. See United States v. County of Fresno, 429 U.S. 452, 467-468 (1977); cf. Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528 (1985). Whatever burdens are imposed on the Federal Government by a neutral state law regulating its suppliers "are but normal incidents of the organization within the same territory of two governments." Helvering v. Gerhardt, 304 U.S. 405, 422 (1938); see also South Carolina v. Baker, 485 U. S., at 520-521; Penn Dairies, Inc. v. Milk Control Comm'n of Pennsylvania, 318 U.S. 261, 271 (1943); Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 487 (1939). A state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals. South Carolina v. Baker, 485 U. S., at 523; County of Fresno, 429 U. S., at 460. In addition, the question whether a state regulation discriminates against the Federal Government cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory "with regard to the economic burdens that result." Washington v. United States, 460 U.S. 536, 544 (1983). Claims to any further degree of immunity must be resolved under principles of congressional pre-emption. See, e. g., Penn Dairies, Inc. v. Milk Control Comm'n, 318 U. S., at 271; James v. Dravo Contracting Co., 302 U. S., at 161.[7] *436 Application of these principles to the North Dakota regulations demonstrates that they do not violate the intergovernmental immunity doctrine. There is no claim in this case, nor could there be, that North Dakota regulates the Federal Government directly. See United States v. New Mexico, *437 455 U.S. 720 (1982); Hancock v. Train, 426 U.S. 167 (1976); Mississippi Tax Comm'n II, 421 U. S., at 608-610; Mayo v. United States, 319 U.S. 441, 447 (1943). Both the reporting requirement and the labeling regulation operate against suppliers, not the Government, and concerns about direct interference with the Federal Government, see City of Detroit v. Murray Corp. of America, 355 U.S. 489, 504-505 (1958) (opinion of Frankfurter, J.), therefore are not implicated. In this respect, the regulations cannot be distinguished from the price control regulations and taxes imposed on Government contractors that we have repeatedly upheld against constitutional challenge. See United States v. City of Detroit, 355 U.S. 466 (1958); Penn Dairies, Inc., 318 U. S., at 279-280; Alabama v. King & Boozer, 314 U.S. 1, 8 (1941).[8] Nor can it be said that the regulations discriminate against the Federal Government or those with whom it deals. The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal *438 Government. McCulloch v. Maryland, 4 Wheat., at 425-437.[9] Since a regulation imposed on one who deals with the Government has as much potential to obstruct governmental functions as a regulation imposed on the Government itself, the Court has required that the regulation be one that is imposed on some basis unrelated to the object's status as a Government contractor or supplier, that is, that it be imposed equally on other similarly situated constituents of the State. See, e. g., United States v. County of Fresno, 429 U. S., at 462-464. Moreover, in analyzing the constitutionality of a state law, it is not appropriate to look to the most narrow provision addressing the Government or those with whom it deals. A state provision that appears to treat the Government differently on the most specific level of analysis may, in its broader regulatory context, not be discriminatory. We have held that "[t]he State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington v. United States, 460 U. S., at 544-545.[10] The North Dakota liquor control regulations, the regulatory regime of which the Government complains, do not disfavor the Federal Government but actually favor it. The *439 labeling and reporting regulations are components of an extensive system of statewide regulation that furthers legitimate interests in promoting temperance and controlling the distribution of liquor, in addition to raising revenue. The system applies to all liquor retailers in the State. In this system, the Federal Government is favored over all those who sell liquor in the State. All other liquor retailers are required to purchase from state-licensed wholesalers, who are legally bound to comply with the State's liquor distribution system. N. D. Cent. Code § 5-03-01.1 (1987). The Government has the option, like the civilian retailers in the State, to purchase liquor from licensed wholesalers. However, alone among retailers in the State, the Government also has the option to purchase liquor from out-of-state wholesalers if those wholesalers comply with the labeling and reporting regulations. The system does not discriminate "with regard to the economic burdens that result." Washington, 460 U. S., at 544. A regulatory regime which so favors the Federal Government cannot be considered to discriminate against it. IV The conclusion that the labeling regulation does not violate the intergovernmental immunity doctrine does not end the inquiry into whether the regulation impermissibly interferes with federal activities. Congress has the power to confer immunity from state regulation on Government suppliers beyond that conferred by the Constitution alone, see, e. g., United States v. New Mexico, 455 U. S., at 737-738; Penn Dairies, Inc., 318 U. S., at 275, even when the state regulation is enacted pursuant to the State's powers under the Twenty-first Amendment. Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 713. But when the Court is asked to set aside a regulation at the core of the State's powers under the Twenty-first Amendment, as when it is asked to recognize an implied exemption from state taxation, see Rockford Life *440 Ins. Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 191 (1987), it must proceed with particular care. Capital Cities Cable, 467 U. S., at 714. Congress has not here spoken with sufficient clarity to pre-empt North Dakota's attempt to protect its liquor distribution system. The Government's claim that the regulations are pre-empted rests upon a federal statute and federal regulation. The federal statute is 10 U.S. C. § 2488, which governs the procurement of alcoholic beverages by nonappropriated fund instrumentalities. It provides simply that purchases of alcoholic beverages for resale on military installations "shall be made from the most competitive source, price and other factors considered," § 2488(a)(1), but that malt beverages and wine shall be purchased from sources within the State in which the installation is located. It may be inferred from the latter provision as well as from the provision, elsewhere in the Code, that alcoholic beverages purchased for resale in Alaska and Hawaii must be purchased in state, Act of Oct. 30, 1986, Pub. L. 99-591, § 9090, 100 Stat. 3341-116, that Congress intended for the military to be free in the other 48 States to purchase liquor from out-of-state wholesalers. It follows that the States may not directly restrict the military from purchasing liquor out of state. That is the central lesson of our decisions in Paul v. United States, 371 U.S. 245 (1963); United States v. Georgia Public Service Comm'n, 371 U.S. 285 (1963); Public Utilities Comm'n of California v. United States, 355 U.S. 534 (1958); and Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956), in which we invalidated state regulations that prohibited what federal law required. We stated in Paul that there was a "collision . . . clear and acute," between the federal law which required competitive bidding among suppliers and the state law which directly limited the extent to which suppliers could compete. 371 U.S., at 253. It is one thing, however, to say that the State may not pass regulations which directly obstruct federal law; it is quite *441 another to say that they cannot pass regulations which incidentally raise the costs to the military. Any number of state laws may make it more costly for the military to purchase liquor. As Chief Judge Lay observed in dissent, "[c]ompliance with regulations regarding the importation of raw materials, general operations of the distillery or brewery, treatment of employees, bottling, and shipping necessarily increase the cost of liquor." 856 F.2d, at 1116. Highway tax laws and safety laws may make it more costly for the military to purchase from out-of-state shippers. The language used in the 1986 procurement statute does not expressly pre-empt any of these state regulations or address the problem of unlawful diversion of liquor from military bases into the civilian market. It simply states that covered alcoholic beverages shall be obtained from the most competitive source, price and other factors considered. As the District Court observed, however, " `[l]owest cost' is a relative term." 675 F. Supp., at 557. The fact that the reporting and labeling regulations, like safety laws or minimum wage laws, increase the costs for out-of-state shippers does not prevent the Government from obtaining liquor at the most competitive price, but simply raises that price. The procurement statute does not cut such a wide swath through state law as to invalidate the reporting and labeling regulations. In this case the most competitive source for alcoholic beverages are out-of-state distributors whose prices are lower than those charged by North Dakota wholesalers regardless of whether the labeling and reporting requirements are enforced. The North Dakota regulations, which do not restrict the parties from whom the Government may purchase liquor or its ability to engage in competitive bidding, but at worst raise the costs of selling to the military for certain shippers, do not directly conflict with the federal statute. *442 V The DoD regulation restates, in slightly different language,[11] the statutory requirement that distilled spirits be "procured from the most competitive source, price and other factors considered," but it does not purport to carry a greater pre-emptive power than the statutory command itself. It is Congress — not the DoD — that has the power to pre-empt otherwise valid state laws, and there is no language in the relevant statute that either pre-empts state liquor distribution laws or delegates to the DoD the power to pre-empt such state laws.[12] Nor does the text of the DoD regulation itself purport to pre-empt any state laws. See California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 583 (1987); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S., at 717-718. It directs the military to consider various factors in determining "the most advantageous contract, price and other considered factors," but that command cannot be understood to pre-empt state laws that have the incidental effect of raising costs for the military. Indeed, the regulation specifically envisions some regulation by state law, for it provides that the Department "shall cooperate with local [and] state . . . officials . . . to the degree that their duties relate to the provisions of this chapter." The regulation *443 does admonish that such cooperation should not be construed as an admission that the military is obligated to submit to state control or required to buy from suppliers located within the State or prescribed by the State. The North Dakota regulations, however, do not require the military to submit to state control or to purchase alcoholic beverage from suppliers within the State or prescribed by the State. The DoD regulation has nothing to say about labeling or reporting by out-of-state suppliers. When the Court is confronted with questions relating to military discipline and military operations, we properly defer to the judgment of those who must lead our Armed Forces in battle. But in questions relating to the allocation of power between the Federal and State Governments on civilian commercial issues, we heed the command of Congress without any special deference to the military's interpretation of that command. The present record does not establish the precise burdens the reporting and labeling regulations will impose on the Government, but there is no evidence that they will be substantial. The reporting requirement has been in effect since 1978 and there is no evidence that it has caused any supplier to raise its costs or stop supplying the military. Although the labeling regulation has caused a few suppliers either to adjust their prices or to cease direct shipments to the bases, there has been no showing that there are not other suppliers willing to enter the market and there is no indication that the Government has made any attempt to secure other out-of-state suppliers. The cost of the labels is approximately three to five cents if purchased from the state treasurer, and the distillers have the right to print their own labels if they prefer. App. 34. Even in the initial stage of enforcing the requirement for the two bases in North Dakota, various distillers and suppliers have already notified the state treasurer that they intend to comply with the new regulations. Ibid. *444A And, even if its worst predictions are fulfilled, the military will still be the most favored customer in the State. It is Congress, not this Court, which is best situated to evaluate whether the federal interest in procuring the most inexpensive liquor outweighs the State's legitimate interest in preventing diversion. Congress has already effected a compromise by excluding beer and wine and the States of Hawaii and Alaska from the 1986 statute. It may also decide to prohibit labels entirely or prescribe their use on a nationwide basis. It would be both an unwise and an unwarranted extension of the intergovernmental immunity doctrine for this Court to hold that the burdens associated with the labeling and reporting requirements — no matter how trivial they may prove to be — are sufficient to make them unconstitutional. The judgment of the Court of Appeals is reversed. It is so ordered. *444B And, even if its worst predictions are fulfilled, the military will still be the most favored customer in the State. It is Congress, not this Court, which is best situated to evaluate whether the federal interest in procuring the most inexpensive liquor outweighs the State's legitimate interest in preventing diversion. Congress has already effected a compromise by excluding beer and wine and the States of Hawaii and Alaska from the 1986 statute. It may also decide to prohibit labels entirely or prescribe their use on a nationwide basis. It would be both an unwise and an unwarranted extension of the intergovernmental immunity doctrine for this Court to hold that the burdens associated with the labeling and reporting requirements — no matter how trivial they may prove to be — are sufficient to make them unconstitutional. The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE SCALIA, concurring in the judgment.

The Uited ad the State of North Dakota exercise cocurret jurisdictio over the Grad Forks Air Force Base ad the Miot Air Force Base. Each sovereig has its ow separate regulatory objectives with respect to the area over which it has authority. The Departmet of Defese (DoD), which operates clubs ad package stores located o those bases, has sought to reduce the price that it pays for alcoholic beverages sold o the bases by istitutig a system of competitive biddig. The State, which has established a liquor distributio system i order to promote temperace ad esure orderly market coditios, wishes to protect the itegrity of that system by requirig out-of-state shippers to file mothly reports ad to affix a label to each bottle of liquor sold to a federal eclave for domestic cosumptio. The clash betwee the State's iterest i prevetig the diversio of liquor ad the federal iterest i obtaiig the lowest possible price forms the basis for the Federal Govermet's Supremacy Clause ad pre-emptio challeges to the North Dakota regulatios. *427 The Uited sells alcoholic beverages to military persoel ad their families at clubs ad package stores o its military bases. The military uses reveue from these sales to support a morale, welfare, ad recreatio program for persoel ad their families. See ; DoD Directive 1015.1 (Aug. 19, ). Before December 195, o federal statute govered the purchase of liquor for these establishmets. From December 19, 195, to October 19, 196, federal law required military bases to purchase alcoholic beverages oly withi their home State. See Effective October 30, 196, Cogress elimiated the requiremet that the military purchase liquor from withi the State ad directed that distilled spirits be "procured from the most competitive source, price ad other factors cosidered." 10 U.S. C. 24(a).[1] accordace with this statute, the DoD has developed a joit-military purchasig program to buy liquor i bulk directly from the Natio's primary distributors who offer the lowest possible prices. Purchases are made pursuat to a DoD regulatio which provides: " `The Departmet of Defese shall cooperate with local, state, ad federal officials to the degree that their duties relate to the provisios of this chapter. However, the purchase of all alcoholic beverages for resale at ay camp, post, statio, base, or other DoD istallatio withi the Uited shall be i such a maer ad uder such coditios as shall obtai for the govermet the most advatageous cotract, price ad other cosidered factors. These other factors shall ot be costrued as meaig ay submissio to state cotrol, or shall cooperatio *42 be costrued or represeted as a admissio of ay legal obligatio to submit to state cotrol, pay state or local taxes, or purchase alcoholic beverages withi geographical boudaries or at prices or from suppliers prescribed by ay state.' " 32 CFR 261.4 Sice log before the eactmet of the most recet procuremet statute, the State of North Dakota has regulated the importatio ad distributio of alcoholic beverages withi its borders. See N. D. Cet. Code ch. 5 Uder the State's regulatory system, there are three levels of liquor distributors: out-of-state distillers/suppliers, state-licesed wholesalers, ad state-licesed retailers. Distillers/suppliers may sell to oly licesed wholesalers or federal eclaves. N. D. Admi. Code 4-02-01-05(2) (196). Licesed wholesalers, i tur, may sell to licesed retailers, other licesed wholesalers, ad federal eclaves. N. D. Cet. Code 5-03-01 Taxes are imposed at both levels of distributio. N. D. Cet. Code 5-03-07 ; N. D. Cet. Code ch. 57-39.2 order to moitor the importatio of liquor, the State sice 197 has required all persos brigig liquor ito the State to file mothly reports documetig the volume of liquor they have imported. The reportig regulatio provides: "All persos sedig or brigig liquor ito North Dakota shall file a North Dakota Schedule A Report of all shipmets ad returs for each caleder moth with the state treasurer. The report must be postmarked o or before the fifteeth day of the followig moth." N. D. Admi. Code 4-02-01-05(1) (196). Sice 196, the State has also required out-of-state distillers who sell liquor directly to a federal eclave to affix labels to each idividual item, idicatig that the liquor is for domestic cosumptio oly withi the federal eclave. The labels may be purchased from the state treasurer for a small sum or prited by the distillers/suppliers themselves accordig *429 to a state-approved format. App. 34. The labelig regulatio provides: "All liquor destied for delivery to a federal eclave i North Dakota for domestic cosumptio ad ot trasported through a licesed North Dakota wholesaler for delivery to such boa fide federal eclave i North Dakota shall have clearly idetified o each idividual item that such shall be for cosumptio withi the federal eclave exclusively. Such idetificatio must be i a form ad maer prescribed by the state treasurer." N. D. Admi. Code 4-02-01-05(7) (196). Withi the State of North Dakota, the Uited operates two military bases: Grad Forks Air Force Base ad Miot Air Force Base. The State ad Federal Govermet exercise cocurret jurisdictio over both.[2] Shortly after the effective date of the procuremet statute permittig the military to make purchases from out of state, the state treasurer coducted a meetig with out-of-state suppliers to explai the labelig ad reportig requiremets. App. 34. Five out-of-state distillers ad importers thereupo iformed federal military procuremet officials that they would ot ship liquor to the North Dakota bases because of the burde of complyig with the North Dakota regulatios.[3] A sixth supplier, Kobrad mporters, c., icreased its prices from betwee $0.5 ad $20.50 per case to reflect the cost of labelig ad reportig. *430 The Uited istituted this actio i the Uited District Court for the District of North Dakota seekig declaratory ad ijuctive relief agaist the applicatio of the State's regulatios to liquor destied for federal eclaves. The District Court deied the Uited ' cross-motio for summary judgmet ad grated the ' motio. The court reasoed that there was o coflict betwee the state ad federal regulatios because the state regulatios did ot prevet the Govermet from obtaiig beverages at the "lowest cost." A divided Uited Court of Appeals for the Eighth Circuit reversed. While recogizig that "othig i the record compels us to believe that the regulatios are a pretext to require i-state purchases," the majority held that the regulatios impermissibly made out-of-state distillers less competitive with local wholesalers. Chief Judge Lay argued i disset that the effect o the Federal Govermet was a permissible icidet of regulatios passed pursuat to the State's powers uder the Twety-first Amedmet. We oted probable jurisdictio, ad ow reverse. The Court has cosidered the power of the to pass liquor cotrol regulatios that burde the Federal Govermet i four cases sice the ratificatio of the Twety-first Amedmet.[4] See ; ; Uited ; Uited ; see also each of those cases, we cocluded that the State has o authority to regulate i a area or over a trasactio that fell outside of its jurisdictio. Collis, we held that the Twety-first Amedmet did ot give the the power to regulate the use of alcohol withi a atioal park over which the Federal Govermet had exclusive jurisdictio. Hostetter, we held that the Twety-first Amedmet coferred o authority to licese the sale of tax-free liquors at a airport for delivery to foreig destiatios made uder the supervisio of the Uited Bureau of Customs. Mississippi Tax Comm' held that the State had o authority to regulate a trasactio betwee a out-of-state liquor supplier ad a federal military base withi the exclusive federal jurisdictio. Ad, i Mississippi Tax Comm' we held that the State has o authority to tax directly a federal istrumetality o a eclave over which the Uited exercised cocurret jurisdictio. At the same time, however, withi the area of its jurisdictio, the State has "virtually complete cotrol" over the importatio ad sale of liquor ad the structure of the liquor distributio system. See Califoria Retail Liquor Dealers ; see also Capital Cities ; Califoria Board of The Court has made clear that the have the power to cotrol shipmets of liquor durig their passage through their territory ad to take appropriate steps to prevet the ulawful diversio of liquor ito their regulated itrastate markets. Hostetter, we stated that our decisio i Collis, strikig dow the Califoria Alcoholic Beverage Cotrol Act as applied to a exclusive federal reservatio, might have bee otherwise if "Califoria had sought to regulate or cotrol the trasportatio of the liquor there ivolved from the time of its etry ito the State util its delivery at the atioal park, i the iterest of prevetig *432 ulawful diversio ito her territory." We foud that the state licesig law there uder attack was ulawful because New York "ha[d] ot sought to regulate or cotrol the passage of itoxicats through her territory i the iterest of prevetig their ulawful diversio ito the iteral commerce of the State. As the District Court emphasized, this case does ot ivolve `measures aimed at prevetig ulawful diversio or use of alcoholic beverages withi New York.'" Mississippi Tax Comm' after holdig that the State could ot impose its ormal markup o sales to the military bases, we added that "a State may, i the absece of coflictig federal regulatio, properly exercise its police powers to regulate ad cotrol such shipmets durig their passage through its territory isofar as ecessary to prevet the `ulawful diversio' of liquor `ito the iteral commerce of the State.' " -37 The two North Dakota regulatios fall withi the core of the State's power uder the Twety-first Amedmet. the iterest of promotig temperace, esurig orderly market coditios, ad raisig reveue, the State has established a comprehesive system for the distributio of liquor withi its borders. That system is uquestioably legitimate. See ; Califoria Board of The requiremets that a out-of-state supplier which trasports liquor ito the State affix a label to each bottle of liquor destied for delivery to a federal eclave ad that it report the volume of liquor it has trasported are ecessary compoets of the regulatory regime. Because liquor sold at Grad Forks ad Miot Air Force Bases has bee purchased directly from out-of-state suppliers, either the markup or the state taxes paid by liquor wholesalers ad retailers i North Dakota is reflected i the military purchase price. Moreover, the federal eclaves are ot govered by *433 state laws with respect to the sale of itoxicats; the military establishes the type of liquor it sells, the miimum age of buyers, ad the days ad times its package stores will be ope. The risk of diversio ito the retail market ad disruptio of the liquor distributio system is thus both substatial ad real.[5] t is ecessary for the State to record the volume of liquor shipped ito the State ad to idetify those products which have ot bee distributed through the State's liquor distributio system. The labelig ad reportig requiremets uquestioably serve valid state iterests.[6] Give the special protectio afforded to state liquor cotrol policies by the Twety-first Amedmet, they are supported by a strog presumptio of validity ad should ot be set aside lightly. See, e. g., Capital Cities *434 State law may ru afoul of the Supremacy Clause i two distict ways: The law may regulate the Govermet directly or discrimiate agaist it, see or it may coflict with a affirmative commad of Cogress. See ; see also Hillsborough Couty v. Automated Medical Laboratories, c., -713 The Federal Govermet's attack o the regulatios is based o both grouds of ivalidity. The Govermet argues that the state provisios goverig the distributio of liquor by out-of-state shippers "regulate" govermetal actios ad are therefore ivalid directly uder the Supremacy Clause. The argumet is uavailig. State tax laws, licesig provisios, cotract laws, or eve "a statute or ordiace regulatig the mode of turig at the corer of streets," o less tha the reportig ad labelig regulatios at issue i this case, regulate federal activity i the sese that they make it more costly for the Govermet to do its busiess. At oe time, the Court struck dow may of these state regulatios, see Pahadle Oil ; ; ; o the theory that they iterfered with "the costitutioal meas which have bee legislated by the govermet of the Uited to carry ito effect its powers." Over 50 years ago, however, the Court decisively rejected the argumet that ay state regulatio which idirectly regulates the Federal Govermet's activity is ucostitutioal, see ad that view has ow bee "thoroughly *435 repudiated." South ; see also Califoria Board of Equalizatio v. Sierra Summit, c., ; Cotto Petroleum The Court has more recetly adopted a fuctioal approach to claims of govermetal immuity, accommodatig of the full rage of each sovereig's legislative authority ad respectful of the primary role of Cogress i resolvig coflicts betwee the Natioal ad State Govermets. See Uited ; cf. Whatever burdes are imposed o the Federal Govermet by a eutral state law regulatig its suppliers "are but ormal icidets of the orgaizatio withi the same territory of two govermets." ; see also South 45 U. S., at -521; Pe Dairies, c. v. Milk Cotrol Comm' of Pesylvaia, ; A state regulatio is ivalid oly if it regulates the Uited directly or discrimiates agaist the Federal Govermet or those with whom it deals. South ; Couty of additio, the questio whether a state regulatio discrimiates agaist the Federal Govermet caot be viewed i isolatio. Rather, the etire regulatory system should be aalyzed to determie whether it is discrimiatory "with regard to the ecoomic burdes that result." Claims to ay further degree of immuity must be resolved uder priciples of cogressioal pre-emptio. See, e. g., Pe Dairies, c. v. Milk Cotrol Comm', 31 U. S., at ;[7] *436 Applicatio of these priciples to the North Dakota regulatios demostrates that they do ot violate the itergovermetal immuity doctrie. There is o claim i this case, or could there be, that North Dakota regulates the Federal Govermet directly. See Uited ; Hacock v. Trai, ; Mississippi Tax Comm' -610; Mayo v. Uited Both the reportig requiremet ad the labelig regulatio operate agaist suppliers, ot the Govermet, ad cocers about direct iterferece with the Federal Govermet, see City of (opiio of Frakfurter, J.), therefore are ot implicated. this respect, the regulatios caot be distiguished from the price cotrol regulatios ad taxes imposed o Govermet cotractors that we have repeatedly upheld agaist costitutioal challege. See Uited ; Pe Dairies, c., -20; Alabama v. Kig & Boozer,[] Nor ca it be said that the regulatios discrimiate agaist the Federal Govermet or those with whom it deals. The odiscrimiatio rule fids its reaso i the priciple that the may ot directly obstruct the activities of the Federal *43 Govermet. 4 Wheat., at[9] Sice a regulatio imposed o oe who deals with the Govermet has as much potetial to obstruct govermetal fuctios as a regulatio imposed o the Govermet itself, the Court has required that the regulatio be oe that is imposed o some basis urelated to the object's status as a Govermet cotractor or supplier, that is, that it be imposed equally o other similarly situated costituets of the State. See, e. g., Uited -464. Moreover, i aalyzig the costitutioality of a state law, it is ot appropriate to look to the most arrow provisio addressig the Govermet or those with whom it deals. A state provisio that appears to treat the Govermet differetly o the most specific level of aalysis may, i its broader regulatory cotext, ot be discrimiatory. We have held that "[t]he State does ot discrimiate agaist the Federal Govermet ad those with whom it deals uless it treats someoe else better tha it treats them." 460 U. S., at -545.[10] The North Dakota liquor cotrol regulatios, the regulatory regime of which the Govermet complais, do ot disfavor the Federal Govermet but actually favor it. The *439 labelig ad reportig regulatios are compoets of a extesive system of statewide regulatio that furthers legitimate iterests i promotig temperace ad cotrollig the distributio of liquor, i additio to raisig reveue. The system applies to all liquor retailers i the State. this system, the Federal Govermet is favored over all those who sell liquor i the State. All other liquor retailers are required to purchase from state-licesed wholesalers, who are legally boud to comply with the State's liquor distributio system. N. D. Cet. Code 5-03-01.1 The Govermet has the optio, like the civilia retailers i the State, to purchase liquor from licesed wholesalers. However, aloe amog retailers i the State, the Govermet also has the optio to purchase liquor from out-of-state wholesalers if those wholesalers comply with the labelig ad reportig regulatios. The system does ot discrimiate "with regard to the ecoomic burdes that result." Washigto, 460 U. S., at A regulatory regime which so favors the Federal Govermet caot be cosidered to discrimiate agaist it. V The coclusio that the labelig regulatio does ot violate the itergovermetal immuity doctrie does ot ed the iquiry ito whether the regulatio impermissibly iterferes with federal activities. Cogress has the power to cofer immuity from state regulatio o Govermet suppliers beyod that coferred by the Costitutio aloe, see, e. g., Uited v. New -73; Pe Dairies, c., 31 U. S., at 275, eve whe the state regulatio is eacted pursuat to the State's powers uder the Twety-first Amedmet. Capital Cities But whe the Court is asked to set aside a regulatio at the core of the State's powers uder the Twety-first Amedmet, as whe it is asked to recogize a implied exemptio from state taxatio, see Rockford Life *440 s. v. lliois Dept. of Reveue, 42 U.S. 12, it must proceed with particular care. Capital Cities Cogress has ot here spoke with sufficiet clarity to pre-empt North Dakota's attempt to protect its liquor distributio system. The Govermet's claim that the regulatios are pre-empted rests upo a federal statute ad federal regulatio. The federal statute is 10 U.S. C. 24, which govers the procuremet of alcoholic beverages by oappropriated fud istrumetalities. t provides simply that purchases of alcoholic beverages for resale o military istallatios "shall be made from the most competitive source, price ad other factors cosidered," 24(a)(1), but that malt beverages ad wie shall be purchased from sources withi the State i which the istallatio is located. t may be iferred from the latter provisio as well as from the provisio, elsewhere i the Code, that alcoholic beverages purchased for resale i Alaska ad Hawaii must be purchased i state, Act of Oct. 30, 196, Pub. L. 99-591, 9090, -116, that Cogress iteded for the military to be free i the other 4 to purchase liquor from out-of-state wholesalers. t follows that the may ot directly restrict the military from purchasig liquor out of state. That is the cetral lesso of our decisios i Paul v. Uited ; Uited v. Georgia Public Service Comm', 371 U.S. 25 ; Public Utilities Comm' of Califoria v. Uited ; ad Leslie Miller, c. v. Arkasas, 352 U.S. 17 (19), i which we ivalidated state regulatios that prohibited what federal law required. We stated i Paul that there was a "collisio clear ad acute," betwee the federal law which required competitive biddig amog suppliers ad the state law which directly limited the extet to which suppliers could compete. t is oe thig, however, to say that the State may ot pass regulatios which directly obstruct federal law; it is quite *441 aother to say that they caot pass regulatios which icidetally raise the costs to the military. Ay umber of state laws may make it more costly for the military to purchase liquor. As Chief Judge Lay observed i disset, "[c]ompliace with regulatios regardig the importatio of raw materials, geeral operatios of the distillery or brewery, treatmet of employees, bottlig, ad shippig ecessarily icrease the cost of liquor." F.2d, at 1116. Highway tax laws ad safety laws may make it more costly for the military to purchase from out-of-state shippers. The laguage used i the 196 procuremet statute does ot expressly pre-empt ay of these state regulatios or address the problem of ulawful diversio of liquor from military bases ito the civilia market. t simply states that covered alcoholic beverages shall be obtaied from the most competitive source, price ad other factors cosidered. As the District Court observed, however, " `[l]owest cost' is a relative term." 675 F. Supp., at The fact that the reportig ad labelig regulatios, like safety laws or miimum wage laws, icrease the costs for out-of-state shippers does ot prevet the Govermet from obtaiig liquor at the most competitive price, but simply raises that price. The procuremet statute does ot cut such a wide swath through state law as to ivalidate the reportig ad labelig regulatios. this case the most competitive source for alcoholic beverages are out-of-state distributors whose prices are lower tha those charged by North Dakota wholesalers regardless of whether the labelig ad reportig requiremets are eforced. The North Dakota regulatios, which do ot restrict the parties from whom the Govermet may purchase liquor or its ability to egage i competitive biddig, but at worst raise the costs of sellig to the military for certai shippers, do ot directly coflict with the federal statute. *442 V The DoD regulatio restates, i slightly differet laguage,[11] the statutory requiremet that distilled spirits be "procured from the most competitive source, price ad other factors cosidered," but it does ot purport to carry a greater pre-emptive power tha the statutory commad itself. t is Cogress — ot the DoD — that has the power to pre-empt otherwise valid state laws, ad there is o laguage i the relevat statute that either pre-empts state liquor distributio laws or delegates to the DoD the power to pre-empt such state laws.[12] Nor does the text of the DoD regulatio itself purport to pre-empt ay state laws. See Califoria Coastal Comm' v. Graite Rock 40 U.S. 572, 53 ; Hillsborough Couty v. Automated Medical Laboratories, c., -71. t directs the military to cosider various factors i determiig "the most advatageous cotract, price ad other cosidered factors," but that commad caot be uderstood to pre-empt state laws that have the icidetal effect of raisig costs for the military. deed, the regulatio specifically evisios some regulatio by state law, for it provides that the Departmet "shall cooperate with local [ad] state officials to the degree that their duties relate to the provisios of this chapter." The regulatio *443 does admoish that such cooperatio should ot be costrued as a admissio that the military is obligated to submit to state cotrol or required to buy from suppliers located withi the State or prescribed by the State. The North Dakota regulatios, however, do ot require the military to submit to state cotrol or to purchase alcoholic beverage from suppliers withi the State or prescribed by the State. The DoD regulatio has othig to say about labelig or reportig by out-of-state suppliers. Whe the Court is cofroted with questios relatig to military disciplie ad military operatios, we properly defer to the judgmet of those who must lead our Armed Forces i battle. But i questios relatig to the allocatio of power betwee the Federal ad State Govermets o civilia commercial issues, we heed the commad of Cogress without ay special deferece to the military's iterpretatio of that commad. The preset record does ot establish the precise burdes the reportig ad labelig regulatios will impose o the Govermet, but there is o evidece that they will be substatial. The reportig requiremet has bee i effect sice 197 ad there is o evidece that it has caused ay supplier to raise its costs or stop supplyig the military. Although the labelig regulatio has caused a few suppliers either to adjust their prices or to cease direct shipmets to the bases, there has bee o showig that there are ot other suppliers willig to eter the market ad there is o idicatio that the Govermet has made ay attempt to secure other out-of-state suppliers. The cost of the labels is approximately three to five cets if purchased from the state treasurer, ad the distillers have the right to prit their ow labels if they prefer. App. 34. Eve i the iitial stage of eforcig the requiremet for the two bases i North Dakota, various distillers ad suppliers have already otified the state treasurer that they ited to comply with the ew regulatios. *444A Ad, eve if its worst predictios are fulfilled, the military will still be the most favored customer i the State. t is Cogress, ot this Court, which is best situated to evaluate whether the federal iterest i procurig the most iexpesive liquor outweighs the State's legitimate iterest i prevetig diversio. Cogress has already effected a compromise by excludig beer ad wie ad the of Hawaii ad Alaska from the 196 statute. t may also decide to prohibit labels etirely or prescribe their use o a atiowide basis. t would be both a uwise ad a uwarrated extesio of the itergovermetal immuity doctrie for this Court to hold that the burdes associated with the labelig ad reportig requiremets — o matter how trivial they may prove to be — are sufficiet to make them ucostitutioal. The judgmet of the Court of Appeals is reversed. t is so ordered. *444B Ad, eve if its worst predictios are fulfilled, the military will still be the most favored customer i the State. t is Cogress, ot this Court, which is best situated to evaluate whether the federal iterest i procurig the most iexpesive liquor outweighs the State's legitimate iterest i prevetig diversio. Cogress has already effected a compromise by excludig beer ad wie ad the of Hawaii ad Alaska from the 196 statute. t may also decide to prohibit labels etirely or prescribe their use o a atiowide basis. t would be both a uwise ad a uwarrated extesio of the itergovermetal immuity doctrie for this Court to hold that the burdes associated with the labelig ad reportig requiremets — o matter how trivial they may prove to be — are sufficiet to make them ucostitutioal. The judgmet of the Court of Appeals is reversed. t is so ordered. JUSTCE SCALA, cocurrig i the judgmet.

Justice Stevens

majority

Michigan v. Jackson

https://www.courtlistener.com/opinion/111622/michigan-v-jackson/

https://www.courtlistener.com/api/rest/v3/clusters/111622/

1985-059

In Edwards v. Arizona, 451 U.S. 477 (1981), we held that an accused person in custody who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id., at 484-485. In Solem v. Stumes, 465 U.S. 638 (1984), we reiterated that "Edwards established a bright-line rule to safeguard pre-existing rights," id., at 646: "once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him." Id., at 641. The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment. In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained — and the Sixth Amendment violated — because the defendants had "requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations." 421 Mich. 39, 67-68, 365 N.W.2d 56, 69 (1984). We agree with that holding. I The relevant facts may be briefly stated. Respondent Bladel was convicted of the murder of three railroad employees at the Amtrak Station in Jackson, Michigan, on December *627 31, 1978. Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him. Prior to that questioning, the officers properly advised Bladel of his Miranda rights.[1] Although he had inquired about his representation several times since the arraignment, Bladel was not told that a law firm had been appointed to represent him. The trial court overruled Bladel's objection to the admissibility of all four statements. On appeal from his conviction and sentence, Bladel challenged only the postarraignment confession. The Michigan Court of Appeals first rejected that challenge and affirmed the conviction, 106 Mich. App. 397, 308 N.W.2d 230 (1981), but, after reconsideration in the light of a recent decision by the State Supreme Court, it reversed and remanded for a new trial. 118 Mich. App. 498, 325 N.W.2d 421 (1982). The Michigan Supreme Court then granted the prosecutor's application for leave to appeal and considered the case with respondent Jackson's appeal of his conviction. 421 Mich. 39, 365 N.W.2d 56 (1984). *628 Respondent Jackson was convicted of second-degree murder and conspiracy to commit second-degree murder. He was one of four participants in a wife's plan to have her husband killed on July 12, 1979. Arrested on an unrelated charge on July 30, 1979, he made a series of six statements in response to police questioning prior to his arraignment at 4:30 p.m. on August 1. During the arraignment, Jackson requested that counsel be appointed for him. The police involved in his investigation were present at the arraignment. On the following morning, before he had an opportunity to consult with counsel, two police officers obtained another statement from Jackson to "confirm" that he was the person who had shot the victim. As was true of the six prearraignment statements, the questioning was preceded by advice of his Miranda rights and Jackson's agreement to proceed without counsel being present. The Michigan Court of Appeals held that the seventh statement was properly received in evidence. 114 Mich. App. 649, 319 N.W.2d 613 (1982). It distinguished Edwards on the ground that Jackson's request for an attorney had been made at his arraignment whereas Edwards' request had been made during a custodial interrogation by the police. Accordingly, it affirmed Jackson's conviction of murder, although it set aside the conspiracy conviction on unrelated grounds. The Michigan Supreme Court held that the postarraignment statements in both cases should have been suppressed. Noting that the Sixth Amendment right to counsel attached at the time of the arraignments, the court concluded that the Edwards rule "applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. . . . The police cannot simply ignore a defendant's unequivocal request for counsel." 421 Mich., at 66-67, 365 N. W. 2d, at 68-69 *629 (footnote omitted). We granted certiorari, 471 U.S. 1124 (1985), and we now affirm.[2] II The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, 451 U. S., at 482; Miranda v. Arizona, 384 U.S. 436, 470 (1966). The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals "the initiation of adversary judicial proceedings" and thus the attachment of the Sixth Amendment, United States v. Gouveia, 467 U.S. 180, 187, 188 (1984);[3] thereafter, *630 government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the Sixth Amendment applies. Maine v. Moulton, 474 U.S. 159 (1985); United States v. Henry, 447 U.S. 264 (1980); Brewer v. Williams, 430 U.S. 387 (1977); Massiah v. United States, 377 U.S. 201 (1964). The question in these cases is whether respondents validly waived their right to counsel at the postarraignment custodial interrogations. In Edwards, the request for counsel was made to the police during custodial interrogation, and the basis for the Court's holding was the Fifth Amendment privilege against compelled self-incrimination. The Court noted the relevance of various Sixth Amendment precedents, 451 U.S., at 484, n. 8, but found it unnecessary to rely on the possible applicability of the Sixth Amendment. Id., at 480, n. 7. In these cases, the request for counsel was made to a judge during arraignment, and the basis for the Michigan Supreme Court opinion was the Sixth Amendment's guarantee of the assistance of counsel.[4] The State argues that the Edwards rule should not apply to these circumstances because there are legal differences in the basis for the claims; because there are *631 factual differences in the contexts of the claims; and because respondents signed valid waivers of their right to counsel at the postarraignment custodial interrogations. We consider these contentions in turn. The State contends that differences in the legal principles underlying the Fifth and Sixth Amendments compel the conclusion that the Edwards rule should not apply to a Sixth Amendment claim. Edwards flows from the Fifth Amendment's right to counsel at custodial interrogations, the State argues; its relevance to the Sixth Amendment's provision of the assistance of counsel is far less clear, and thus the Edwards principle for assessing waivers is unnecessary and inappropriate. In our opinion, however, the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. The State's argument misapprehends the nature of the pretrial protections afforded by the Sixth Amendment. In United States v. Gouveia, we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel: "[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings `is far from a mere formalism.' Kirby v. Illinois, 406 U. S., at 689. It is only at that time `that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.' " 467 U.S., at 189. *632 As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a `medium' between him and the State." Maine v. Moulton, 474 U. S., at 176. Thus, the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation. Indeed, after a formal accusation has been made — and a person who had previously been just a "suspect" has become an "accused" within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, see United States v. Henry, 447 U.S. 264 (1980), or the electronic surveillance of conversations with third parties, see Maine v. Moulton, supra; Massiah v. United States, 377 U.S. 201 (1964), may violate the defendant's Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment.[5] Far from undermining the Edwards rule, the difference between the legal basis for the rule applied in Edwards and the Sixth Amendment claim asserted in these cases actually provides additional support for the application of the rule in these circumstances. The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their request *633 for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in Johnson v. Zerbst, 304 U.S. 458 (1938), a case involving an alleged waiver of a defendant's Sixth Amendment right to counsel, the Court explained that we should "indulge every reasonable presumption against waiver of fundamental constitutional rights." Id., at 464. For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v. Williams, 430 U. S., at 404. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel — we presume that the defendant requests the lawyer's services at every critical stage of the prosecution.[6] We thus reject the State's suggestion that respondents' requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.[7] *634 The State points to another factual difference: the police may not know of the defendant's request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual.[8] One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court). The State also argues that, because of these factual differences, the application of Edwards in a Sixth Amendment context will generate confusion. However, we have frequently emphasized that one of the characteristics of Edwards is its clear, "bright-line" quality. See, e. g., Smith v. Illinois, 469 U.S. 91, 98 (1984); Solem v. Stumes, 465 U. S., at 646; Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (plurality opinion); id., at 1054, n. 2 (MARSHALL, J., dissenting). We do not agree that applying the rule when the accused requests counsel at an arraignment, rather than in the police station, somehow diminishes that clarity. To the extent that there may have been any doubts about interpreting a request *635 for counsel at an arraignment, or about the police responsibility to know of and respond to such a request, our opinion today resolves them. Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect's request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver. 451 U.S., at 484. We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases.[9] Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.[10] *636 III Edwards is grounded in the understanding that "the assertion of the right to counsel [is] a significant event," 451 U.S., at 485, and that "additional safeguards are necessary when the accused asks for counsel." Id., at 484. We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid. Although the Edwards decision itself rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to these cases. The judgments are accordingly affirmed. It is so ordered. CHIEF JUSTICE BURGER, concurring in the judgment.

In we held that an accused person in custody who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." In we reiterated that "Edwards established a bright-line rule to safeguard pre-existing rights," at 646: "once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him." The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment. In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained — and the Sixth Amendment violated — because the defendants had "requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations." We agree with that holding. I The relevant facts may be briefly stated. Respondent Bladel was convicted of the murder of three railroad employees at the Amtrak Station in Jackson, Michigan, on December *627 31, 1978. Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him. Prior to that questioning, the officers properly advised Bladel of his Miranda rights.[1] Although he had inquired about his representation several times since the arraignment, Bladel was not told that a law firm had been appointed to represent him. The trial court overruled Bladel's objection to the admissibility of all four statements. On appeal from his conviction and sentence, Bladel challenged only the postarraignment confession. The Michigan Court of Appeals first rejected that challenge and affirmed the conviction, but, after reconsideration in the light of a recent decision by the State Supreme Court, it reversed and remanded for a new trial. The Michigan Supreme Court then granted the prosecutor's application for leave to appeal and considered the case with respondent Jackson's appeal of his conviction. *628 Respondent Jackson was convicted of second-degree murder and conspiracy to commit second-degree murder. He was one of four participants in a wife's plan to have her husband killed on July 12, 1979. Arrested on an unrelated charge on July 30, 1979, he made a series of six statements in response to police questioning prior to his arraignment at 4:30 p.m. on August 1. During the arraignment, Jackson requested that counsel be appointed for him. The police involved in his investigation were present at the arraignment. On the following morning, before he had an opportunity to consult with counsel, two police officers obtained another statement from Jackson to "confirm" that he was the person who had shot the victim. As was true of the six prearraignment statements, the questioning was preceded by advice of his Miranda rights and Jackson's agreement to proceed without counsel being present. The Michigan Court of Appeals held that the seventh statement was properly received in evidence. It distinguished Edwards on the ground that Jackson's request for an attorney had been made at his arraignment whereas Edwards' request had been made during a custodial interrogation by the police. Accordingly, it affirmed Jackson's conviction of murder, although it set aside the conspiracy conviction on unrelated grounds. The Michigan Supreme Court held that the postarraignment statements in both cases should have been suppressed. Noting that the Sixth Amendment right to counsel attached at the time of the arraignments, the court concluded that the Edwards rule "applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. The police cannot simply ignore a defendant's unequivocal request for counsel." -67, 365 N. W. 2d, at 68- *629 (footnote omitted). We granted certiorari, and we now affirm.[2] II The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, ; The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals "the initiation of adversary judicial proceedings" and thus the attachment of the Sixth Amendment, United ;[3] thereafter, *630 government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the Sixth Amendment applies. ; United ; ; The question in these cases is whether respondents validly waived their right to counsel at the postarraignment custodial interrogations. In Edwards, the request for counsel was made to the police during custodial interrogation, and the basis for the Court's holding was the Fifth Amendment privilege against compelled self-incrimination. The Court noted the relevance of various Sixth Amendment n. 8, but found it unnecessary to rely on the possible applicability of the Sixth Amendment. In these cases, the request for counsel was made to a judge during arraignment, and the basis for the Michigan Supreme Court opinion was the Sixth Amendment's guarantee of the assistance of counsel.[4] The State argues that the Edwards rule should not apply to these circumstances because there are legal differences in the basis for the claims; because there are *631 factual differences in the contexts of the claims; and because respondents signed valid waivers of their right to counsel at the postarraignment custodial interrogations. We consider these contentions in turn. The State contends that differences in the legal principles underlying the Fifth and Sixth Amendments compel the conclusion that the Edwards rule should not apply to a Sixth Amendment claim. Edwards flows from the Fifth Amendment's right to counsel at custodial interrogations, the State argues; its relevance to the Sixth Amendment's provision of the assistance of counsel is far less clear, and thus the Edwards principle for assessing waivers is unnecessary and inappropriate. In our opinion, however, the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. The State's argument misapprehends the nature of the pretrial protections afforded by the Sixth Amendment. In United we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel: "[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings `is far from a mere formalism.' Kirby v. It is only at that time `that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.' " *632 As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a `medium' between him and the State." Thus, the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation. Indeed, after a formal accusation has been made — and a person who had previously been just a "suspect" has become an "accused" within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, see United or the electronic surveillance of conversations with third parties, see may violate the defendant's Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment.[5] Far from undermining the Edwards rule, the difference between the legal basis for the rule applied in Edwards and the Sixth Amendment claim asserted in these cases actually provides additional support for the application of the rule in these circumstances. The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their request *633 for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in a case involving an alleged waiver of a defendant's Sixth Amendment right to counsel, the Court explained that we should "indulge every reasonable presumption against waiver of fundamental constitutional rights." For that reason, it is the State that has the burden of establishing a valid Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel — we presume that the defendant requests the lawyer's services at every critical stage of the prosecution.[6] We thus reject the State's suggestion that respondents' requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.[7] *634 The State points to another factual difference: the police may not know of the defendant's request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual.[8] One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court). The State also argues that, because of these factual differences, the application of Edwards in a Sixth Amendment context will generate confusion. However, we have frequently emphasized that one of the characteristics of Edwards is its clear, "bright-line" quality. See, e. g., Smith v. 4 U.S. 91, ; ; (13) ; We do not agree that applying the rule when the accused requests counsel at an arraignment, rather than in the police station, somehow diminishes that clarity. To the extent that there may have been any doubts about interpreting a request *635 for counsel at an arraignment, or about the police responsibility to know of and respond to such a request, our opinion today resolves them. Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect's request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases.[9] Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.[10] *636 III Edwards is grounded in the understanding that "the assertion of the right to counsel [is] a significant event," and that "additional safeguards are necessary when the accused asks for counsel." We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid. Although the Edwards decision itself rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to these cases. The judgments are accordingly affirmed. It is so ordered. CHIEF JUSTICE BURGER, concurring in the judgment.

Justice Stevens

second_dissenting

Will v. Michigan Dept. of State Police

https://www.courtlistener.com/opinion/112293/will-v-michigan-dept-of-state-police/

https://www.courtlistener.com/api/rest/v3/clusters/112293/

1988-112

Legal doctrines often flourish long after their raison d'etre has perished.[1] The doctrine of sovereign immunity rests on the fictional premise that the "King can do no wrong."[2] Even though the plot to assassinate James I in 1605, the execution *88 of Charles I in 1649, and the Colonists' reaction to George III's stamp tax made rather clear the fictional character of the doctrine's underpinnings, British subjects found a gracious means of compelling the King to obey the law rather than simply repudiating the doctrine itself. They held his advisers and his agents responsible.[3] In our administration of § 1983, we have also relied on fictions to protect the illusion that a sovereign State, absent consent, may not be held accountable for its delicts in federal court. Under a settled course of decision, in contexts ranging from school desegregation to the provision of public *89 assistance benefits to the administration of prison systems and other state facilities, we have held the States liable under § 1983 for their constitutional violations through the artifice of naming a public officer as a nominal party. Once one strips away the Eleventh Amendment overlay applied to actions in federal court, it is apparent that the Court in these cases has treated the State as the real party in interest both for the purposes of granting prospective and ancillary relief and of denying retroactive relief. When suit is brought in state court, where the Eleventh Amendment is inapplicable, it follows that the State can be named directly as a party under § 1983. An official-capacity suit is the typical way in which we have held States responsible for their duties under federal law. Such a suit, we have explained, " `generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.' " Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978)); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 101 (1984). In the peculiar Eleventh Amendment analysis we have applied to such cases, we have recognized that an official-capacity action is in reality always against the State and balanced interests to determine whether a particular type of relief is available. The Court has held that when a suit seeks equitable relief or money damages from a state officer for injuries suffered in the past, the interests in compensation and deterrence are insufficiently weighty to override the State's sovereign immunity. See Papasan v. Allain, 478 U.S. 265, 278 (1986); Green v. Mansour, 474 U.S. 64, 68 (1985); Edelman v. Jordan, 415 U.S. 651, 668 (1974). On the other hand, although prospective relief awarded against a state officer also "implicate[s] Eleventh Amendment concerns," Mansour, 474 U. S., at 68, the interests in "end[ing] a continuing violation of federal law," ibid., outweigh the interests in state sovereignty and justify *90 an award under § 1983 of an injunction that operates against the State's officers or even directly against the State itself. See, e. g., Papasan, supra, at 282; Quern v. Jordan, 440 U.S. 332, 337 (1979); Milliken v. Bradley, 433 U.S. 267, 289 (1977). In Milliken v. Bradley, supra, for example, a unanimous Court upheld a federal-court order requiring the State of Michigan to pay $5,800,000 to fund educational components in a desegregation decree "notwithstanding [its] direct and substantial impact on the state treasury." Id., at 289 (emphasis added).[4] As Justice Powell stated in his opinion concurring in the judgment, "the State [had] been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate." Id., at 295. Subsequent decisions have adhered to the position that equitable relief — even "a remedy that might require the expenditure of state funds," Papasan, supra, at 282 — may be awarded to ensure future compliance by a State with a substantive federal question determination. See also Quern v. Jordan, 440 U. S., at 337. Our treatment of States as "persons" under § 1983 is also exemplified by our decisions holding that ancillary relief, such as attorney's fees, may be awarded directly against the State. We have explained that "liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity *91 or on the merits, § 1988 does not authorize a fee award against that defendant." Kentucky v. Graham, supra, at 165. Nonetheless, we held in Hutto v. Finney, 437 U.S. 678 (1978), a case challenging the administration of the Arkansas prison system, that a Federal District Court could award attorney's fees directly against the State under § 1988,[5]id., at 700; see Brandon v. Holt, 469 U.S. 464, 472 (1985), and could assess attorney's fees for bad-faith litigation under § 1983 " `to be paid out of Department of Corrections funds.' " 437 U.S., at 692. In Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 739 (1980), JUSTICE WHITE reaffirmed for a unanimous Court that an award of fees could be entered against a State or state agency, in that case a State Supreme Court, in an injunctive action under § 1983.[6] In suits commenced in state court, in which there is no independent reason to require parties to sue nominally a state officer, we have held that attorney's *92 fees can be awarded against the State in its own name. See Maine v. Thiboutot, 448 U.S. 1, 10-11 (1980).[7] The Civil Rights Act of 1871 was "intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights." Monell v. New York City Dept. of Social Services, 436 U. S., at 700-701. Our holdings that a § 1983 action can be brought against state officials in their official capacity for constitutional violations properly recognize and are faithful to that profound mandate. If prospective relief can be awarded against state officials under § 1983 and the State is the real party in interest in such suits, the State must be a "person" which can be held liable under § 1983. No other conclusion is available. Eleventh Amendment principles may limit the State's capacity to be sued as such in federal court. See Alabama v. Pugh, 438 U.S. 781 (1978). But since those principles are not applicable to suits in state court, see Thiboutot, supra, at 9, n. 7; Nevada v. Hall, 440 U.S. 410 (1979), there is no need to resort to the fiction of an official-capacity suit and the State may and should be named directly as a defendant in a § 1983 action. The Court concludes, however, that "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983," ante, at 71, n. 10, while that same party sued in the same official capacity is not a person when the plaintiff seeks monetary relief. It cites in support of this proposition cases such as Osborn v. Bank of United States, 9 Wheat. 738 (1824), in which the Court through Chief Justice Marshall held that an action against a state auditor to recover taxes illegally collected did not constitute an action against the State. This line of authority, the Court states, "would *93 not have been foreign to the 19th-century Congress that enacted § 1983." Ante, at 71, n. 10. On the Court's supposition, the question would be whether the complaint against a state official states a claim for the type of relief sought, not whether it will have an impact on the state treasury. See, e. g., Governor of Georgia v. Madrazo, 1 Pet. 110, 124 (1828). At least for actions in state court, as to which there could be no constitutional reason to look to the effect on the State, see Edelman v. Jordan, 415 U.S. 651 (1974), the Court's analysis would support actions for the recovery of chattel and real property against state officials both of which were well known in the 19th century. See Poindexter v. Greenhow, 114 U.S. 270 (1884); United States v. Lee, 106 U.S. 196 (1882). Although the conclusion that a state officer sued for damages in his or her official capacity is not a "person" under § 1983 would not quite follow,[8] it might nonetheless be permissible to assume that the 1871 Congress did not contemplate an action for damages payable not by the officer personally but by the State. The Court having constructed an edifice for the purposes of the Eleventh Amendment on the theory that the State is always the real party in interest in a § 1983 official-capacity action against a state officer, I would think the majority would be impelled to conclude that the State is a "person" under § 1983. As JUSTICE BRENNAN has demonstrated, there is also a compelling textual argument that States are persons under § 1983. In addition, the Court's construction draws an illogical distinction between wrongs committed by county or municipal officials on the one hand, and those committed by state officials on the other. Finally, there is no necessity to *94 import into this question of statutory construction doctrine created to protect the fiction that one sovereign cannot be sued in the courts of another sovereign. Aside from all of these reasons, the Court's holding that a State is not a person under § 1983 departs from a long line of judicial authority based on exactly that premise. I respectfully dissent.

Legal doctrines often flourish long after their raison d'etre has perished.[1] The doctrine of sovereign immunity rests on the fictional premise that the "King can do no wrong."[2] Even though the plot to assassinate James I in 1605, the execution *88 of Charles I in 1649, and the Colonists' reaction to George III's stamp tax made rather clear the fictional character of the doctrine's underpinnings, British subjects found a gracious means of compelling the King to obey the law rather than simply repudiating the doctrine itself. They held his advisers and his agents responsible.[3] In our administration of 1983, we have also relied on fictions to protect the illusion that a sovereign State, absent consent, may not be held accountable for its delicts in federal court. Under a settled course of decision, in contexts ranging from school desegregation to the provision of public *89 assistance benefits to the administration of prison systems and other state facilities, we have held the States liable under 1983 for their constitutional violations through the artifice of naming a public officer as a nominal party. Once one strips away the Eleventh Amendment overlay applied to actions in federal court, it is apparent that the Court in these cases has treated the State as the real party in interest both for the purposes of granting prospective and ancillary relief and of denying retroactive relief. When suit is brought in state court, where the Eleventh Amendment is inapplicable, it follows that the State can be named directly as a party under 1983. An official-capacity suit is the typical way in which we have held States responsible for their duties under federal law. Such a suit, we have explained, " `generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.' " ; see also Pennhurst State School and In the peculiar Eleventh Amendment analysis we have applied to such cases, we have recognized that an official-capacity action is in reality always against the State and balanced interests to determine whether a particular type of relief is available. The Court has held that when a suit seeks equitable relief or money damages from a state officer for injuries suffered in the past, the interests in compensation and deterrence are insufficiently weighty to override the State's sovereign immunity. See ; ; 6 On the other hand, although prospective relief awarded against a state officer also "implicate[s] Eleventh Amendment concerns," 474 U. S., at the interests in "end[ing] a continuing violation of federal law," ibid., outweigh the interests in state sovereignty and justify *90 an award under 1983 of an injunction that operates against the State's officers or even directly against the State itself. See, e. g., ; ; In for example, a unanimous Court upheld a federal-court order requiring the State of Michigan to pay $5,800,000 to fund educational components in a desegregation decree "notwithstanding [its] direct and substantial impact on the state treasury." at[4] As Justice Powell stated in his opinion concurring in the judgment, "the State [had] been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate." Subsequent decisions have adhered to the position that equitable relief — even "a remedy that might require the expenditure of state funds," — may be awarded to ensure future compliance by a State with a substantive federal question determination. See also 440 U. S., at Our treatment of States as "persons" under 1983 is also exemplified by our decisions holding that ancillary relief, such as attorney's fees, may be awarded directly against the State. We have explained that "liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity *91 or on the merits, 1988 does not authorize a fee award against that defendant." at Nonetheless, we held in a case challenging the administration of the Arkansas prison system, that a Federal District Court could award attorney's fees directly against the State under 1988,[5]id., at 700; see and could assess attorney's fees for bad-faith litigation under 1983 " `to be paid out of Department of Corrections funds.' " In Supreme Court of JUSTICE WHITE reaffirmed for a unanimous Court that an award of fees could be entered against a State or state agency, in that case a State Supreme Court, in an injunctive action under 1983.[6] In suits commenced in state court, in which there is no independent reason to require parties to sue nominally a state officer, we have held that attorney's *92 fees can be awarded against the State in its own name. See[7] The Civil Rights Act of 1871 was "intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights." -701. Our holdings that a 1983 action can be brought against state officials in their official capacity for constitutional violations properly recognize and are faithful to that profound mandate. If prospective relief can be awarded against state officials under 1983 and the State is the real party in interest in such suits, the State must be a "person" which can be held liable under 1983. No other conclusion is available. Eleventh Amendment principles may limit the State's capacity to be sued as such in federal court. See But since those principles are not applicable to suits in state court, see ; there is no need to resort to the fiction of an official-capacity suit and the State may and should be named directly as a defendant in a 1983 action. The Court concludes, however, that "a state official in his or her official capacity, when sued for injunctive relief, would be a person under 1983," ante, at 71, n. 10, while that same party sued in the same official capacity is not a person when the plaintiff seeks monetary relief. It cites in support of this proposition cases such as in which the Court through Chief Justice Marshall held that an action against a state auditor to recover taxes illegally collected did not constitute an action against the State. This line of authority, the Court states, "would *93 not have been foreign to the 19th-century Congress that enacted 1983." Ante, at 71, n. 10. On the Court's supposition, the question would be whether the complaint against a state official states a claim for the type of relief sought, not whether it will have an impact on the state treasury. See, e. g., Governor of At least for actions in state court, as to which there could be no constitutional reason to look to the effect on the State, see the Court's analysis would support actions for the recovery of chattel and real property against state officials both of which were well known in the 19th century. See ; United Although the conclusion that a state officer sued for damages in his or her official capacity is not a "person" under 1983 would not quite follow,[8] it might nonetheless be permissible to assume that the 1871 Congress did not contemplate an action for damages payable not by the officer personally but by the State. The Court having constructed an edifice for the purposes of the Eleventh Amendment on the theory that the State is always the real party in interest in a 1983 official-capacity action against a state officer, I would think the majority would be impelled to conclude that the State is a "person" under 1983. As JUSTICE BRENNAN has demonstrated, there is also a compelling textual argument that States are persons under 1983. In addition, the Court's construction draws an illogical distinction between wrongs committed by county or municipal officials on the one hand, and those committed by state officials on the other. Finally, there is no necessity to *94 import into this question of statutory construction doctrine created to protect the fiction that one sovereign cannot be sued in the courts of another sovereign. Aside from all of these reasons, the Court's holding that a State is not a person under 1983 departs from a long line of judicial authority based on exactly that premise. I respectfully dissent.

Justice Burger

concurring

Wainwright v. Sykes

https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/

https://www.courtlistener.com/api/rest/v3/clusters/109717/

1976-162

I concur fully in the judgment and in the Court's opinion. I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the *92 "deliberate bypass" standard enunciated in Fay v. Noia, 372 U.S. 391 (1963), was never designed for, and is inapplicable to, errors—even of constitutional dimension—alleged to have been committed during trial. In Fay v. Noia, the Court applied the "deliberate bypass" standard to a case where the critical procedural decision— whether to take a criminal appeal—was entrusted to a convicted defendant. Although Noia, the habeas petitioner, was represented by counsel, he himself had to make the decision whether to appeal or not; the role of the attorney was limited to giving advice and counsel. In giving content to the new deliberate-bypass standard, Fay looked to the Court's decision in Johnson v. Zerbst, 304 U.S. 458 (1938), a case where the defendant had been called upon to make the decision whether to request representation by counsel in his federal criminal trial. Because in both Fay and Zerbst, important rights hung in the balance of the defendant's own decision, the Court required that a waiver impairing such rights be a knowing and intelligent decision by the defendant himself. As Fay put it: "If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts . . . then it is open to the federal court on habeas to deny him all relief . . . ." 372 U.S., at 439. The touchstone of Fay and Zerbst, then, is the exercise of volition by the defendant himself with respect to his own federal constitutional rights. In contrast, the claim in the case before us relates to events during the trial itself. Typically, habeas petitioners claim that unlawfully secured evidence was admitted, but see Stone v. Powell, 428 U.S. 465 (1976), or that improper testimony was adduced, or that an improper jury charge was given, but see Henderson v. Kibbe, 431 U.S. 145, 157 (1977) (BURGER, C. J., concurring in judgment), *93 or that a particular line of examination or argument by the prosecutor was improper or prejudicial. But unlike Fay and Zerbst, preservation of this type of claim under state procedural rules does not generally involve an assertion by the defendant himself; rather, the decision to assert or not to assert constitutional rights or constitutionally based objections at trial is necessarily entrusted to the defendant's attorney, who must make on-the-spot decisions at virtually all stages of a criminal trial. As a practical matter, a criminal defendant is rarely, if ever, in a position to decide, for example, whether certain testimony is hearsay and, if so, whether it implicates interests protected by the Confrontation Clause; indeed, it is because "`[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law'" that we held it constitutionally required that every defendant who faces the possibility of incarceration be afforded counsel. Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335, 345 (1963). Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate—and ultimate—responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.[1] The trial process simply does not permit the type of frequent and protracted interruptions which would be necessary if it were required that clients give knowing and intelligent approval to each of the myriad tactical decisions as a trial proceeds.[2] *94 Since trial decisions are of necessity entrusted to the accused's attorney, the Fay-Zerbst standard of "knowing and intelligent waiver" is simply inapplicable. The dissent in this case, written by the author of Fay v. Noia, implicitly recognizes as much. According to the dissent, Fay imposes the knowing-and-intelligent-waiver standard "where possible" during the course of the trial. In an extraordinary modification of Fay, MR. JUSTICE BRENNAN would now require "that the lawyer actually exercis[e] his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible"; he does not intimate what guidelines would be used to decide when or under what circumstances this would actually be "possible." Post, at 116. (Emphasis supplied.) What had always been thought the standard governing the accused's waiver of his own constitutional rights the dissent would change, in the trial setting, into a standard of conduct imposed upon the defendant's attorney. This vague "standard" would be unmanageable to the point of impossibility. The effort to read this expanded concept into Fay is to no avail; that case simply did not address a situation where the defendant had to look to his lawyer for vindication of constitutionally based interests. I would leave the core holding of Fay where it began, and reject this illogical uprooting of an otherwise defensible doctrine. MR.

I concur fully in the judgment and in the Court's opinion. I write separately to emphasize one point which, to me, seems of critical importance to this case. In my view, the *92 "deliberate bypass" standard enunciated in was never designed for, and is inapplicable to, errors—even of constitutional dimension—alleged to have been committed during trial. In the Court applied the "deliberate bypass" standard to a case where the critical procedural decision— whether to take a criminal appeal—was entrusted to a convicted defendant. Although Noia, the habeas petitioner, was represented by counsel, he himself had to make the decision whether to appeal or not; the role of the attorney was limited to giving advice and counsel. In giving content to the new deliberate-bypass standard, Fay looked to the Court's decision in a case where the defendant had been called upon to make the decision whether to request representation by counsel in his federal criminal trial. Because in both Fay and Zerbst, important rights hung in the balance of the defendant's own decision, the Court required that a waiver impairing such rights be a knowing and intelligent decision by the defendant himself. As Fay put it: "If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts then it is open to the federal court on habeas to deny him all relief" The touchstone of Fay and Zerbst, then, is the exercise of volition by the defendant himself with respect to his own federal constitutional rights. In contrast, the claim in the case before us relates to events during the trial itself. Typically, habeas petitioners claim that unlawfully secured evidence was admitted, but see or that improper testimony was adduced, or that an improper jury charge was given, but see *93 or that a particular line of examination or argument by the prosecutor was improper or prejudicial. But unlike Fay and Zerbst, preservation of this type of claim under state procedural rules does not generally involve an assertion by the defendant himself; rather, the decision to assert or not to assert constitutional rights or constitutionally based objections at trial is necessarily entrusted to the defendant's attorney, who must make on-the-spot decisions at virtually all stages of a criminal trial. As a practical matter, a criminal defendant is rarely, if ever, in a position to decide, for example, whether certain testimony is hearsay and, if so, whether it implicates interests protected by the Confrontation Clause; indeed, it is because "`[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law'" that we held it constitutionally required that every defendant who faces the possibility of incarceration be afforded counsel. ; Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate—and ultimate—responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.[1] The trial process simply does not permit the type of frequent and protracted interruptions which would be necessary if it were required that clients give knowing and intelligent approval to each of the myriad tactical decisions as a trial proceeds.[2] *94 Since trial decisions are of necessity entrusted to the accused's attorney, the Fay-Zerbst standard of "knowing and intelligent waiver" is simply inapplicable. The dissent in this case, written by the author of implicitly recognizes as much. According to the dissent, Fay imposes the knowing-and-intelligent-waiver standard "where possible" during the course of the trial. In an extraordinary modification of Fay, MR. JUSTICE BRENNAN would now require "that the lawyer actually exercis[e] his expertise and judgment in his client's service, and with his client's knowing and intelligent participation where possible"; he does not intimate what guidelines would be used to decide when or under what circumstances this would actually be "possible." Post, at 116. (Emphasis supplied.) What had always been thought the standard governing the accused's waiver of his own constitutional rights the dissent would change, in the trial setting, into a standard of conduct imposed upon the defendant's attorney. This vague "standard" would be unmanageable to the point of impossibility. The effort to read this expanded concept into Fay is to no avail; that case simply did not address a situation where the defendant had to look to his lawyer for vindication of constitutionally based interests. I would leave the core holding of Fay where it began, and reject this illogical uprooting of an otherwise defensible doctrine. MR.

Justice Thomas

majority

Department of Defense v. FLRA

https://www.courtlistener.com/opinion/112932/department-of-defense-v-flra/

https://www.courtlistener.com/api/rest/v3/clusters/112932/

1993-025

This case requires us to consider whether disclosure of the home addresses of federal civil service employees by their employing agency pursuant to a request made by the employees' collective-bargaining representative under the Federal Service Labor-Management Relations Statute, 5 U.S. C. §§ 7101-7135 (1988 ed. and Supp. IV), would constitute a "clearly unwarranted invasion" of the employees' personal privacy within the meaning of the Freedom of Information Act, 5 U.S. C. § 552. Concluding that it would, we reverse the judgment of the Court of Appeals. *490 I The controversy underlying this case arose when two local unions[1] requested the petitioner federal agencies[2] to provide them with the names and home addresses of the agency employees in the bargaining units represented by the unions. The agencies supplied the unions with the employees' names and work stations, but refused to release home addresses. In response, the unions filed unfair labor practice charges with respondent Federal Labor Relations Authority (Authority), in which they contended that the Federal Service Labor-Management Relations Statute (Labor Statute), 5 U.S. C. §§ 7101-7135 (1988 ed. and Supp. IV), required the agencies to divulge the addresses. The Labor Statute generally provides that agencies must, "to the extent not prohibited by law," furnish unions with data that are necessary for collective-bargaining purposes. § 7114(b)(4). The agencies argued that disclosure of the home addresses was prohibited by the Privacy Act of 1974 (Privacy Act), 5 U.S. C. § 552a (1988 ed. and Supp. IV). Relying on its earlier decision in Department of Navy, Portsmouth Naval Shipyard, Ports-mouth, N. H., 37 F. L. R. A. 515 (1990) (Portsmouth), application for enforcement denied and cross-petition for review granted sub nom. FLRA v. Department of Navy, Naval Communications Unit Cutler, 941 F.2d 49 (CA1 1991), the Authority rejected that argument and ordered the agencies to divulge the addresses. Department of Defense, Army *491 and Air Force Exchange Serv., Dallas, Tex., 37 F. L. R. A. 930 (1990); Department of Navy, 37 F. L. R. A. 652 (1990). A divided panel of the United States Court of Appeals for the Fifth Circuit granted enforcement of the Authority's orders. 975 F.2d 1105 (1992). The panel majority agreed with the Authority that the unions' requests for home addresses fell within a statutory exception to the Privacy Act. That Act does not bar disclosure of personal information if disclosure would be "required under section 552 of this title [the Freedom of Information Act (FOIA)]." 5 U.S. C. § 552a(b)(2). The court below observed that FOIA, with certain enumerated exceptions, generally mandates full disclosure of information held by agencies. In the view of the Court of Appeals, only one of the enumerated exceptions— the provision exempting from FOIA's coverage personnel files "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," 5 U.S. C. § 552(b)(6) (Exemption 6)—potentially applied to this case. 975 F.2d, at 1109. In determining whether Exemption 6 applied, the Fifth Circuit balanced the public interest in effective collective bargaining embodied in the Labor Statute against the interest of employees in keeping their home addresses private. The court recognized that, in light of our decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), other Courts of Appeals had concluded that the only public interest to be weighed in the Exemption 6 balancing analysis is the extent to which FOIA's central purpose of opening agency action to public scrutiny would be served by disclosure.[3] Rejecting that view, however, the *492 panel majority reasoned that Reporters Committee "has absolutely nothing to say about. . . the situation that arises when disclosure is initially required by some statute other than the FOIA, and the FOIA is employed only secondarily." 975 F.2d, at 1113. In such cases, the court ruled that "it is proper for the federal court to consider the public interests embodied in the statute which generates the disclosure request." Id., at 1115. Applying this approach, the court concluded that, because the weighty interest in public sector collective bargaining identified by Congress in the Labor Statute would be advanced by the release of the home addresses, disclosure "would not constitute a clearly unwarranted invasion of privacy." Id., at 1116. In the panel majority's view, because Exemption 6 would not apply, FOIA would require disclosure of the addresses; in turn, therefore, the Privacy Act did not forbid the agencies to divulge the addresses, and the Authority's orders were binding. Ibid. The dissenting judge argued that Reporters Committee controlled the case and barred the agencies from disclosing their employees' addresses to the unions. Id., at 1116-1119 (Garza, J., dissenting). We granted certiorari, 507 U.S. 1003 (1993), to resolve a conflict among the Courts of Appeals concerning whether the Privacy Act forbids the disclosure of employee addresses to collective-bargaining representatives pursuant to information requests made under the Labor Statute. II Like the Court of Appeals, we begin our analysis with the terms of the Labor Statute, which governs labor-management relations in the federal civil service. Consistent with the congressional finding that "labor organizations and collective bargaining in the civil service are in the public interest," 5 U.S. C. § 7101(a), the Labor Statute requires an agency to accord exclusive recognition to a labor union that *493 is elected by employees to serve as the representative of a bargaining unit. § 7111(a). An exclusive representative must represent fairly all employees in the unit, regardless of whether they choose to become union members. § 7114(a)(1). The Labor Statute also imposes a duty on the agency and the exclusive representative to negotiate in good faith for the purpose of arriving at a collective-bargaining agreement. § 7114(a)(4). To fulfill its good-faith bargaining obligation, an agency must, inter alia, "furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data. . . (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." § 7114(b)(4)(B) (emphasis added). The Authority has determined that the home addresses of bargaining unit employees constitute information that is "necessary" to the collective-bargaining process because through them, unions may communicate with employees more effectively than would otherwise be possible. See Portsmouth, 37 F. L. R. A., at 532 ("In the home environment, the employee has the leisure and the privacy to give the full and thoughtful attention to the union's message that the workplace generally does not permit"); Farmers Home Admin. Finance Office, 23 F. L. R. A. 788, 796-797 (1986). This determination, which has been upheld by several Courts of Appeals,[4] is not before us. Nor is there any dispute that the addresses are "reasonably available." Therefore, unless disclosure is "prohibited by law," agencies such as petitioners must release home addresses to exclusive representatives upon request. Petitioners contend that the Privacy Act prohibits disclosure. This statute provides in part: *494 "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be . . . (2) required under section 552 of this title [FOIA]." 5 U.S. C. § 552a(b)(2) (1988 ed. and Supp. IV). The employee addresses sought by the unions are "records" covered by the broad terms of the Privacy Act. Therefore, unless FOIA would require release of the addresses, their disclosure is "prohibited by law," and the agencies may not reveal them to the unions.[5] We turn, then, to FOIA. As we have recognized previously, FOIA reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Department of Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (internal quotation marks omitted). See also EPA v. Mink, 410 U.S. 73, 79-80 (1973). Thus, while "disclosure, not secrecy, is the dominant objective of [FOIA]," there are a number of exemptions from the statute's broad reach. Rose, supra, at 361. The exemption potentially applicable to employee addresses is Exemption 6, which provides that FOIA's disclosure requirements do not *495 apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S. C. § 552(b)(6). Thus, although this case requires us to follow a somewhat convoluted path of statutory cross-references, its proper resolution depends upon a discrete inquiry: whether disclosure of the home addresses "would constitute a clearly unwarranted invasion of [the] personal privacy" of bargaining unit employees within the meaning of FOIA. For guidance in answering this question, we need look no further than to our decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989). Reporters Committee involved FOIA requests addressed to the Federal Bureau of Investigation that sought the "rap sheets" of several individuals. In the process of deciding that the FBI was prohibited from disclosing the contents of the rap sheets, we reaffirmed several basic principles that have informed our interpretation of FOIA. First, in evaluating whether a request for information lies within the scope of a FOIA exemption, such as Exemption 6, that bars disclosure when it would amount to an invasion of privacy that is to some degree "unwarranted," "a court must balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect." Id., at 776. See also Rose, supra, at 372. Second, the only relevant "public interest in disclosure" to be weighed in this balance is the extent to which disclosure would serve the "core purpose of the FOIA," which is "contribut[ing] significantly to public understanding of the operations or activities of the government." Reporters Comm., supra, at 775 (internal quotation marks omitted). We elaborated on this point at some length: "[FOIA's] basic policy of `full agency disclosure unless information is exempted under clearly delineated statutory language' indeed focuses on the citizens' right to be informed about what their government is up to. Official *496 information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." 489 U.S., at 773 (quoting Rose, supra, at 360-361) (other internal quotation marks and citations omitted). See also Rose, supra, at 372 (Exemption 6 cases "require a balancing of the individual's right of privacy against the preservation of the basic purpose of [FOIA] to open agency action to the light of public scrutiny") (internal quotation marks omitted). Third, "whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made." Reporters Comm., 489 U. S., at 771. Because "Congress `clearly intended' the FOIA `to give any member of the public as much right to disclosure as one with a special interest [in a particular document],'" ibid. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)), except in certain cases involving claims of privilege, "the identity of the requesting party has no bearing on the merits of his or her FOIA request," 489 U.S., at 771.[6] *497 III The principles that we followed in Reporters Committee can be applied easily to this case. We must weigh the privacy interest of bargaining unit employees in nondisclosure of their addresses against the only relevant public interest in the FOIA balancing analysis—the extent to which disclosure of the information sought would "she[d] light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to." Reporters Comm., supra, at 773 (internal quotation marks omitted; emphasis deleted). The relevant public interest supporting disclosure in this case is negligible, at best. Disclosure of the addresses might allow the unions to communicate more effectively with employees, but it would not appreciably further "the citizens' right to be informed about what their government is up to." 489 U.S., at 773 (internal quotation marks omitted). Indeed, such disclosure would reveal little or nothing about the employing agencies or their activities. Even the Fifth *498 Circuit recognized that "[r]elease of the employees' . . . addresses would not in any meaningful way open agency action to the light of public scrutiny." 975 F.2d, at 1113. Apparently realizing that this conclusion follows ineluctably from an application of the FOIA tenets we embraced in Reporters Committee, respondents argue that Reporters Committee is largely inapposite here because it dealt with an information request made directly under FOIA, whereas the unions' requests for home addresses initially were made under the Labor Statute, and implicated FOIA only incidentally through a chain of statutory cross-references. In such a circumstance, contend respondents, to give full effect to the three statutes involved and to allow unions to perform their statutory representational duties, we should import the policy considerations that are made explicit in the Labor Statute into the FOIA Exemption 6 balancing analysis. If we were to do so, respondents are confident we would conclude that the Labor Statute's policy favoring collective bargaining easily outweighs any privacy interest that employees might have in nondisclosure. We decline to accept respondents' ambitious invitation to rewrite the statutes before us and to disregard the FOIA principles reaffirmed in Reporters Committee. The Labor Statute does not, as the Fifth Circuit suggested, merely "borro[w] the FOIA's disclosure calculus for another purpose." 975 F.2d, at 1115. Rather, it allows the disclosure of information necessary for effective collective bargaining only "to the extent not prohibited by law." 5 U.S. C. § 7114(b)(4). Disclosure of the home addresses is prohibited by the Privacy Act unless an exception to that Act applies. The terms of the Labor Statute in no way suggest that the Privacy Act should be read in light of the purposes of the Labor Statute. If there is an exception, therefore, it must be found within the Privacy Act itself. Congress could have enacted an exception to the Privacy Act's coverage for information "necessary" for collective-bargaining purposes, but it *499 did not do so. In the absence of such a provision, respondents rely on the exception for information the disclosure of which would be "required under [FOIA]." § 552a(b)(2). No-where, however, does the Labor Statute amend FOIA's disclosure requirements or grant information requesters under the Labor Statute special status under FOIA.[7] Therefore, because all FOIA requesters have an equal, and equally qualified, right to information, the fact that respondents are seeking to vindicate the policies behind the Labor Statute is irrelevant to the FOIA analysis. Cf. Reporters Comm., 489 U. S., at 771-772. In her concurring opinion in FLRA v. Department of Treasury, Financial Management Serv., 884 F.2d 1446 (CADC 1989), cert. denied, 493 U.S. 1055 (1990), then-Judge Ginsburg cogently explained why we must reject respondents' central argument: "The broad cross-reference in 5 U.S. C. § 7114(b)(4)—`to the extent not prohibited by law'—picks up the Privacy Act unmodified; that Act, in turn, shelters personal records absent the consent of the person to whom the record pertains, unless disclosure would be required under the [FOIA]. "Once placed wholly within the FOIA's domain, the union requesting information relevant to collective bargaining stands in no better position than members of the general public. True, unions have a special interest in identifying and communicating with persons in the bargaining *500 unit, an interest initially accommodated by [the Labor Statute]. The bargaining process facilitation interest is ultimately unavailing, however, because it `falls outside the ambit of the public interest that the FOIA was enacted to serve,' i. e., the interest in advancing `public understanding of the operation or activities of the government.'" 884 F.2d, at 1457 (quoting Reporters Comm., supra, at 775). Against the virtually nonexistent FOIA-related public interest in disclosure, we weigh the interest of bargaining unit employees in nondisclosure of their home addresses. Cf. Department of State v. Ray, 502 U.S. 164, 173-177 (1991); Rose, 425 U. S., at 372. Because a very slight privacy interest would suffice to outweigh the relevant public interest, we need not be exact in our quantification of the privacy interest. It is enough for present purposes to observe that the employees' interest in nondisclosure is not insubstantial. It is true that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but "[i]n an organized society, there are few facts that are not at one time or another divulged to another." Reporters Comm., supra, at 763. The privacy interest protected by Exemption 6 "encompass[es] the individual's control of information concerning his or her person." 489 U.S., at 763. An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form. Here, for the most part, the unions seek to obtain the addresses of nonunion employees who have decided not to reveal their addresses to their exclusive representative. See n. 5, supra. Perhaps some of these individuals have failed to join the union that represents them due to lack of familiarity with the union or its services. Others may be opposed to their union or to unionism in general on practical or ideological grounds. *501 Whatever the reason that these employees have chosen not to become members of the union or to provide the union with their addresses, however, it is clear that they have some non-trivial privacy interest in nondisclosure, and in avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure.[8] Many people simply do not want to be disturbed at home by work-related matters. Employees can lessen the chance of such unwanted contacts by not revealing their addresses to their exclusive representative. Even if the direct union/ employee communication facilitated by the disclosure of home addresses were limited to mailings, this does not lessen the interest that individuals have in preventing at least some unsolicited, unwanted mail from reaching them at their homes. We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions. Cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 737 (1970); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Moreover, when we consider that other parties, such as commercial advertisers and solicitors, must have the same access under FOIA as the unions to the employee address lists sought in this case, see supra, at 496, 499, it is clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant. *502 Because the privacy interest of bargaining unit employees in nondisclosure of their home addresses substantially out-weighs the negligible FOIA-related public interest in disclosure, we conclude that disclosure would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S. C. § 552(b)(6). FOIA, thus, does not require the agencies to divulge the addresses, and the Privacy Act, therefore, prohibits their release to the unions. IV Respondents argue that our decision will have a number of untoward effects. First, they contend that without access to home addresses, public sector unions will be unable to communicate with, and represent effectively, all bargaining unit employees. Such a result, they believe, thwarts the collective-bargaining policies explicitly embodied in the Labor Statute. See, e. g., 5 U.S. C. § 7101(a) (congressional finding that "labor organizations and collective bargaining in the civil service are in the public interest"). According to respondents, it is illogical to believe that Congress intended the Privacy Act and FOIA to be interpreted in a manner that hinders the effectuation of the purposes motivating the Labor Statute. Respondents, however, place undue emphasis on what they perceive to be the impulses of the Congress that enacted the Labor Statute, and neglect to consider the language in that statute that calls into play the limitations of the Privacy Act. Speculation about the ultimate goals of the Labor Statute is inappropriate here; the statute plainly states that an agency need furnish an exclusive representative with information that is necessary for collective-bargaining purposes only "to the extent not prohibited by law." 5 U.S. C. § 7114(b)(4). Disclosure of the addresses in this case is prohibited "by law," the Privacy Act. By disallowing disclosure, we do no more than give effect to the clear words of the provisions we *503 construe, including the Labor Statute. Cf. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there"). Second, respondents fear that our ruling will allow agencies, acting pursuant to the Privacy Act, to refuse to provide unions with other employee records, such as disciplinary reports and performance appraisals, that the unions need in order to perform their duties as exclusive bargaining representatives. This concern is not presented in this case, however, and we do not address it. Finally, respondents contend that our decision creates an unnecessary and unintended disparity between public and private sector unions. While private sector unions assertedly are entitled to receive employee home address lists from employers under the National Labor Relations Act, as interpreted by the National Labor Relations Board,[9] respondents claim that federal sector unions now will be needlessly barred from obtaining this information, despite the lack of any indication that Congress intended such a result. See Department of Treasury, 884 F. 2d, at 1457-1461 (R. Ginsburg, J., concurring). We do not question that, as a general matter, private sector labor law may provide guidance in parallel public sector matters. This fact has little relevance here, however, for unlike private sector employees, federal employees enjoy the protection of the Privacy Act, and that statute prohibits the disclosure of the address lists sought in this case. To the extent that this prohibition leaves public sector unions in a position different from that of their private sector counterparts, Congress may correct the disparity. Cf. Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 499 (1985). *504 V For the foregoing reasons, the judgment of the Court of Appeals is reversed. So ordered.

This case requires us to consider whether disclosure of the home addresses of federal civil service employees by their employing agency pursuant to a request made by the employees' collective-bargaining representative under the Federal Service Labor-Management Relations Statute, U.S. C. 7101-713 (1988 ed. and Supp. IV), would constitute a "clearly unwarranted invasion" of the employees' personal privacy within the meaning of the Freedom of Information Act, U.S. C. 2. Concluding that it would, we reverse the judgment of the Court of Appeals. *490 I The controversy underlying this case arose when two local unions[1] requested the petitioner federal agencies[2] to provide them with the names and home addresses of the agency employees in the bargaining units represented by the unions. The agencies supplied the unions with the employees' names and work stations, but refused to release home addresses. In response, the unions filed unfair labor practice charges with respondent Federal Labor Relations Authority (Authority), in which they contended that the Federal Service Labor-Management Relations Statute (Labor Statute), U.S. C. 7101-713 (1988 ed. and Supp. IV), required the agencies to divulge the addresses. The Labor Statute generally provides that agencies must, "to the extent not prohibited by law," furnish unions with data that are necessary for collective-bargaining purposes. 7114(b)(4). The agencies argued that disclosure of the home addresses was prohibited by the Privacy Act of 1974 (Privacy Act), U.S. C. 2a (1988 ed. and Supp. IV). Relying on its earlier decision in Department of Navy, Portsmouth Naval Shipyard, Ports-mouth, N. H., 37 F. L. R. A. 1 (Portsmouth), application for enforcement denied and cross-petition for review granted sub nom. the Authority rejected that argument and ordered the agencies to divulge the addresses. Department of Defense, Army *491 and Air Force Exchange Serv., Dallas, Tex., 37 F. L. R. A. 930 ; Department of Navy, 37 F. L. R. A. 62 A divided panel of the United States Court of Appeals for the Fifth Circuit granted enforcement of the Authority's orders. The panel majority agreed with the Authority that the unions' requests for home addresses fell within a statutory exception to the Privacy Act. That Act does not bar disclosure of personal information if disclosure would be "required under section 2 of this title [the Freedom of Information Act (FOIA)]." U.S. C. 2a(b)(2). The court below observed that FOIA, with certain enumerated exceptions, generally mandates full disclosure of information held by agencies. In the view of the Court of Appeals, only one of the enumerated exceptions— the provision exempting from FOIA's coverage personnel files "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," U.S. C. 2(b)(6) (Exemption 6)—potentially applied to this In determining whether Exemption 6 applied, the Fifth Circuit balanced the public interest in effective collective bargaining embodied in the Labor Statute against the interest of employees in keeping their home addresses private. The court recognized that, in light of our decision in Department of other Courts of Appeals had concluded that the only public interest to be weighed in the Exemption 6 balancing analysis is the extent to which FOIA's central purpose of opening agency action to public scrutiny would be served by disclosure.[3] Rejecting that view, however, the *492 panel majority reasoned that Reporters Committee "has absolutely nothing to say about. the situation that arises when disclosure is initially required by some statute other than the FOIA, and the FOIA is employed only secondarily." In such cases, the court ruled that "it is proper for the federal court to consider the public interests embodied in the statute which generates the disclosure request." Applying this approach, the court concluded that, because the weighty interest in public sector collective bargaining identified by Congress in the Labor Statute would be advanced by the release of the home addresses, disclosure "would not constitute a clearly unwarranted invasion of privacy." In the panel majority's view, because Exemption 6 would not apply, FOIA would require disclosure of the addresses; in turn, therefore, the Privacy Act did not forbid the agencies to divulge the addresses, and the Authority's orders were binding. The dissenting judge argued that Reporters Committee controlled the case and barred the agencies from disclosing their employees' addresses to the unions. -1119 We granted certiorari, to resolve a conflict among the Courts of Appeals concerning whether the Privacy Act forbids the disclosure of employee addresses to collective-bargaining representatives pursuant to information requests made under the Labor Statute. II Like the Court of Appeals, we begin our analysis with the terms of the Labor Statute, which governs labor-management relations in the federal civil service. Consistent with the congressional finding that "labor organizations and collective bargaining in the civil service are in the public interest," U.S. C. 7101(a), the Labor Statute requires an agency to accord exclusive recognition to a labor union that *493 is elected by employees to serve as the representative of a bargaining unit. 7111(a). An exclusive representative must represent fairly all employees in the unit, regardless of whether they choose to become union members. 7114(a)(1). The Labor Statute also imposes a duty on the agency and the exclusive representative to negotiate in good faith for the purpose of arriving at a collective-bargaining agreement. 7114(a)(4). To fulfill its good-faith bargaining obligation, an agency must, inter alia, "furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data. (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." 7114(b)(4)(B) (emphasis added). The Authority has determined that the home addresses of bargaining unit employees constitute information that is "necessary" to the collective-bargaining process because through them, unions may communicate with employees more effectively than would otherwise be possible. See Portsmouth, 37 F. L. R. A., at 32 ("In the home environment, the employee has the leisure and the privacy to give the full and thoughtful attention to the union's message that the workplace generally does not permit"); Farmers Home Admin. Finance Office, 23 F. L. R. A. 788, 796-797 (1986). This determination, which has been upheld by several Courts of Appeals,[4] is not before us. Nor is there any dispute that the addresses are "reasonably available." Therefore, unless disclosure is "prohibited by law," agencies such as petitioners must release home addresses to exclusive representatives upon request. Petitioners contend that the Privacy Act prohibits disclosure. This statute provides in part: *494 "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be (2) required under section 2 of this title [FOIA]." U.S. C. 2a(b)(2) (1988 ed. and Supp. IV). The employee addresses sought by the unions are "records" covered by the broad terms of the Privacy Act. Therefore, unless FOIA would require release of the addresses, their disclosure is "prohibited by law," and the agencies may not reveal them to the unions.[] We turn, then, to FOIA. As we have recognized previously, FOIA reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Department of Air See also Thus, while "disclosure, not secrecy, is the dominant objective of [FOIA]," there are a number of exemptions from the statute's broad reach. The exemption potentially applicable to employee addresses is Exemption 6, which provides that FOIA's disclosure requirements do not *49 apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." U.S. C. 2(b)(6). Thus, although this case requires us to follow a somewhat convoluted path of statutory cross-references, its proper resolution depends upon a discrete inquiry: whether disclosure of the home addresses "would constitute a clearly unwarranted invasion of [the] personal privacy" of bargaining unit employees within the meaning of FOIA. For guidance in answering this question, we need look no further than to our decision in Department of Reporters Committee involved FOIA requests addressed to the Federal Bureau of Investigation that sought the "rap sheets" of several individuals. In the process of deciding that the FBI was prohibited from disclosing the contents of the rap sheets, we reaffirmed several basic principles that have informed our interpretation of FOIA. First, in evaluating whether a request for information lies within the scope of a FOIA exemption, such as Exemption 6, that bars disclosure when it would amount to an invasion of privacy that is to some degree "unwarranted," "a court must balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect." See also Second, the only relevant "public interest in disclosure" to be weighed in this balance is the extent to which disclosure would serve the "core purpose of the FOIA," which is "contribut[ing] significantly to public understanding of the operations or activities of the government." Reporters We elaborated on this point at some length: "[FOIA's] basic policy of `full agency disclosure unless information is exempted under clearly delineated statutory language' indeed focuses on the citizens' right to be informed about what their government is up to. Official *496 information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct." (quoting at ) (other internal quotation marks and citations omitted). See also Third, "whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made." Reporters Because "Congress `clearly intended' the FOIA `to give any member of the public as much right to disclosure as one with a special interest [in a particular document],'" ), except in certain cases involving claims of privilege, "the identity of the requesting party has no bearing on the merits of his or her FOIA request,"[6] *497 III The principles that we followed in Reporters Committee can be applied easily to this We must weigh the privacy interest of bargaining unit employees in nondisclosure of their addresses against the only relevant public interest in the FOIA balancing analysis—the extent to which disclosure of the information sought would "she[d] light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to." Reporters The relevant public interest supporting disclosure in this case is negligible, at best. Disclosure of the addresses might allow the unions to communicate more effectively with employees, but it would not appreciably further "the citizens' right to be informed about what their government is up to." Indeed, such disclosure would reveal little or nothing about the employing agencies or their activities. Even the Fifth *498 Circuit recognized that "[r]elease of the employees' addresses would not in any meaningful way open agency action to the light of public scrutiny." Apparently realizing that this conclusion follows ineluctably from an application of the FOIA tenets we embraced in Reporters Committee, respondents argue that Reporters Committee is largely inapposite here because it dealt with an information request made directly under FOIA, whereas the unions' requests for home addresses initially were made under the Labor Statute, and implicated FOIA only incidentally through a chain of statutory cross-references. In such a circumstance, contend respondents, to give full effect to the three statutes involved and to allow unions to perform their statutory representational duties, we should import the policy considerations that are made explicit in the Labor Statute into the FOIA Exemption 6 balancing analysis. If we were to do so, respondents are confident we would conclude that the Labor Statute's policy favoring collective bargaining easily outweighs any privacy interest that employees might have in nondisclosure. We decline to accept respondents' ambitious invitation to rewrite the statutes before us and to disregard the FOIA principles reaffirmed in Reporters Committee. The Labor Statute does not, as the Fifth Circuit suggested, merely "borro[w] the FOIA's disclosure calculus for another purpose." 97 F.2d, Rather, it allows the disclosure of information necessary for effective collective bargaining only "to the extent not prohibited by law." U.S. C. 7114(b)(4). Disclosure of the home addresses is prohibited by the Privacy Act unless an exception to that Act applies. The terms of the Labor Statute in no way suggest that the Privacy Act should be read in light of the purposes of the Labor Statute. If there is an exception, therefore, it must be found within the Privacy Act itself. Congress could have enacted an exception to the Privacy Act's coverage for information "necessary" for collective-bargaining purposes, but it * did not do so. In the absence of such a provision, respondents rely on the exception for information the disclosure of which would be "required under [FOIA]." 2a(b)(2). No-where, however, does the Labor Statute amend FOIA's disclosure requirements or grant information requesters under the Labor Statute special status under FOIA.[7] Therefore, because all FOIA requesters have an equal, and equally qualified, right to information, the fact that respondents are seeking to vindicate the policies behind the Labor Statute is irrelevant to the FOIA analysis. Cf. Reporters -772. In her concurring opinion in cert. denied, then-Judge Ginsburg cogently explained why we must reject respondents' central argument: "The broad cross-reference in U.S. C. 7114(b)(4)—`to the extent not prohibited by law'—picks up the Privacy Act unmodified; that Act, in turn, shelters personal records absent the consent of the person to whom the record pertains, unless disclosure would be required under the [FOIA]. "Once placed wholly within the FOIA's domain, the union requesting information relevant to collective bargaining stands in no better position than members of the general public. True, unions have a special interest in identifying and communicating with persons in the bargaining *00 unit, an interest initially accommodated by [the Labor Statute]. The bargaining process facilitation interest is ultimately unavailing, however, because it `falls outside the ambit of the public interest that the FOIA was enacted to serve,' i. e., the interest in advancing `public understanding of the operation or activities of the government.'" (quoting Reporters ). Against the virtually nonexistent FOIA-related public interest in disclosure, we weigh the interest of bargaining unit employees in nondisclosure of their home addresses. Cf. Department of ; 42 U. S., Because a very slight privacy interest would suffice to outweigh the relevant public interest, we need not be exact in our quantification of the privacy interest. It is enough for present purposes to observe that the employees' interest in nondisclosure is not insubstantial. It is true that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but "[i]n an organized society, there are few facts that are not at one time or another divulged to another." Reporters The privacy interest protected by Exemption 6 "encompass[es] the individual's control of information concerning his or her person." 489 U.S., An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form. Here, for the most part, the unions seek to obtain the addresses of nonunion employees who have decided not to reveal their addresses to their exclusive representative. See n. Perhaps some of these individuals have failed to join the union that represents them due to lack of familiarity with the union or its services. Others may be opposed to their union or to unionism in general on practical or ideological grounds. *01 Whatever the reason that these employees have chosen not to become members of the union or to provide the union with their addresses, however, it is clear that they have some non-trivial privacy interest in nondisclosure, and in avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure.[8] Many people simply do not want to be disturbed at home by work-related matters. Employees can lessen the chance of such unwanted contacts by not revealing their addresses to their exclusive representative. Even if the direct union/ employee communication facilitated by the disclosure of home addresses were limited to mailings, this does not lessen the interest that individuals have in preventing at least some unsolicited, unwanted mail from reaching them at their homes. We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions. Cf. ; Moreover, when we consider that other parties, such as commercial advertisers and solicitors, must have the same access under FOIA as the unions to the employee address lists sought in this case, see it is clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant. *02 Because the privacy interest of bargaining unit employees in nondisclosure of their home addresses substantially out-weighs the negligible FOIA-related public interest in disclosure, we conclude that disclosure would constitute a "clearly unwarranted invasion of personal privacy." U.S. C. 2(b)(6). FOIA, thus, does not require the agencies to divulge the addresses, and the Privacy Act, therefore, prohibits their release to the unions. IV Respondents argue that our decision will have a number of untoward effects. First, they contend that without access to home addresses, public sector unions will be unable to communicate with, and represent effectively, all bargaining unit employees. Such a result, they believe, thwarts the collective-bargaining policies explicitly embodied in the Labor Statute. See, e. g., U.S. C. 7101(a) (congressional finding that "labor organizations and collective bargaining in the civil service are in the public interest"). According to respondents, it is illogical to believe that Congress intended the Privacy Act and FOIA to be interpreted in a manner that hinders the effectuation of the purposes motivating the Labor Statute. Respondents, however, place undue emphasis on what they perceive to be the impulses of the Congress that enacted the Labor Statute, and neglect to consider the language in that statute that calls into play the limitations of the Privacy Act. Speculation about the ultimate goals of the Labor Statute is inappropriate here; the statute plainly states that an agency need furnish an exclusive representative with information that is necessary for collective-bargaining purposes only "to the extent not prohibited by law." U.S. C. 7114(b)(4). Disclosure of the addresses in this case is prohibited "by law," the Privacy Act. By disallowing disclosure, we do no more than give effect to the clear words of the provisions we *03 construe, including the Labor Statute. Cf. Connecticut Nat. 03 U.S. 249, 23 Second, respondents fear that our ruling will allow agencies, acting pursuant to the Privacy Act, to refuse to provide unions with other employee records, such as disciplinary reports and performance appraisals, that the unions need in order to perform their duties as exclusive bargaining representatives. This concern is not presented in this case, however, and we do not address it. Finally, respondents contend that our decision creates an unnecessary and unintended disparity between public and private sector unions. While private sector unions assertedly are entitled to receive employee home address lists from employers under the National Labor Relations Act, as interpreted by the National Labor Relations Board,[9] respondents claim that federal sector unions now will be needlessly barred from obtaining this information, despite the lack of any indication that Congress intended such a result. See Department of Treasury, 884 F. 2d, at 147-1461 (R. Ginsburg, J., concurring). We do not question that, as a general matter, private sector labor law may provide guidance in parallel public sector matters. This fact has little relevance here, however, for unlike private sector employees, federal employees enjoy the protection of the Privacy Act, and that statute prohibits the disclosure of the address lists sought in this To the extent that this prohibition leaves public sector unions in a position different from that of their private sector counterparts, Congress may correct the disparity. Cf. Sedima, S. P. R. (198). *04 V For the foregoing reasons, the judgment of the Court of Appeals is reversed. So ordered.

Justice Stewart

majority

United States v. Foster Lumber Co.

https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/

https://www.courtlistener.com/api/rest/v3/clusters/109555/

1976-010

Section 172 of the Internal Revenue Code of 1954, as amended, provides that a "net operating loss" experienced by a corporate taxpayer in one year may be carried as a deduction to the preceding three years and the succeeding *34 five years to offset taxable income of those years.[1] The entire loss must be carried to the earliest possible year; any of the loss that is not "absorbed" by that first year *35 may then be carried in turn to succeeding years. The respondent, Foster Lumber Co., sustained a net operating loss of some $42,000 in 1968, which it carried back to 1966. In 1966 the respondent had had ordinary income of about $7,000 and a capital gain of about $167,000. The question presented is whether a loss carryover is "absorbed" by capital gain as well as ordinary income or is instead limited to offsetting only ordinary income. The taxpayer filed a refund suit in Federal District Court challenging the Commissioner's *36 disallowance of its claim that the $35,000 of the 1968 loss not used to offset its 1966 ordinary income survived to reduce its 1967 tax liability. The trial court and the Court of Appeals for the Eighth Circuit agreed with the taxpayer. We granted certiorari to resolve a Circuit conflict on a recurring question of statutory interpretation.[2] I The dispute in this case centers on the meaning of "taxable income" as used in § 172 (b) (2) to govern the amount of carrybacks and carryovers that can be successively transferred from one taxable year to another. In relevant part, § 172 (b) (2) requires the net operating loss to be carried in full to the earliest taxable year possible, and provides: "The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." Thus when the loss has been carried back to the first year to which it is applicable, the loss "survives" for carryover to a succeeding taxable year only to the extent that it exceeds the taxable income of the earlier year. "Taxable income" is defined in § 63 (a) of the Code to mean "gross income, minus the deductions allowed *37 by this chapter." Gross income is in turn defined by § 61 (a) of the Code as "all income from whatever source derived," and specifically includes "[g]ains derived from dealings in property." On its face the concept of "taxable income" thus includes capital gains as well as ordinary income. In the absence of a specific provision excluding capital gains,[3] it thus appears that both capital gain and ordinary income must be included in the taxable income that § 172 directs must be offset by the loss deduction before any loss excess can be found to be available for transfer forward to the succeeding taxable year. The respondent argues that the Code's prescribed method for calculating the taxes due on its taxable income conflicts with this natural reading of § 172. The Code provides two methods for computing taxes due on corporate income, and a corporation is under a statutory duty to employ the method that results in the lower tax. 26 U.S. C. § 1201 (a). Under § 11, the "regular method," ordinary income and capital gains income are added together to produce taxable income; during the period at issue a 22% tax rate was then imposed on the first $25,000 of taxable income and the remainder was taxed at a 48% rate. Section 1201 (a) of the Code prescribes the "alternative tax," calculated in two steps and applied when resulting in a lower tax liability for the corporation. The first step computes a partial tax on the taxable income reduced by the net long-term capital gain[4] at the *38 regular corporate rates imposed by § 11. This step effectively subjects only ordinary income to the partial tax. The second step imposes a 25% tax on the net long-term capital gain. The alternative tax is the sum of the partial tax and the tax on capital gain. In practical terms, the alternative tax does not redefine taxable income, but it does result in a much lower effective tax rate for corporations whose income is in whole or substantial part composed of capital gain. It thus extends to corporations the longstanding statutory policy of taxing income from capital gain at a lower rate than that applicable to ordinary income. The problem from the respondent's point of view is that the mechanics of the alternative tax work in such a way that the potential benefit of the loss deduction may not be fully reflected in reduced tax liability for the taxable year to which the loss is carried. The problem arises when, as in 1966 for the respondent, the "alternative method" governs the calculation of tax liability, and the ordinary income effectively subject to the partial tax under the first step is less than the loss deduction subtracted from it. The Code does not permit the excess loss to be subtracted from the capital gain income before the second step is carried out.[5] Under the alternative method, therefore, the tax benefit of the loss deduction is effectively lost for the carryover year to the extent that it exceeds the ordinary income in that year. This can be seen simply by considering the taxpayer's circumstances in this case. Subtracting the loss deduction of $42,203.12 from the 1966 ordinary income of *39 $7,236.05 under Step 1[6] resulted in a negative balance of $34,967.07; no partial tax was imposed and the 25% rate on the $166,634.81 of capital gains under Step 2 produced a tax of $41,658.70. If the loss deduction had been merely $7,236.05, and thus exactly offset the $7,236.05 of ordinary income, however, the tax due would still have been $41,658.70. The taxpayer therefore asserts that only $7,236.05 of the loss deduction was actually "used" in 1966 and that $34,967.07 remained to be carried forward to reduce its tax liability in 1967. There can be no doubt that if the "regular method" had been applicable to the respondent's taxes in 1966, the loss deduction ($42,203.12) would have been fully "used" to offset capital gains ($166,634.81) as well as ordinary income *40 ($7,236.05), leaving $131,667.74 to be taxed, and a tax bill of $58,200.52.[7] It is clear that the alternative tax produced the lower tax liability despite the inability to fully "use" the loss deduction; the lower tax resulted directly from the favorable rate of taxation of capital gain income prescribed by the alternative method. The question is whether the two "tax benefit" provisions relied on by the respondent— low capital gain taxation under the alternative method and the loss carryback provision—must each be maximized independently of the other or whether Congress instead anticipated that the benefit provided by the loss deduction might on occasion be subsumed in the greater benefit provided by the alternative tax computation method. Section 172 does not explicitly address the question of fit between these two tax benefits, providing simply that "[t]he portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." The respondent contends, and the Tax Court in Chartier Real Estate Co. v. Commissioner, 52 T.C. 346, aff'd per curiam, 428 F.2d 474 (CA1), held, that the phrase *41 "to which such loss may be carried" modifies "taxable income" as well as "each of the prior taxable years." The Tax Court in the Chartier case further held that " `taxable income' in this context (as modified by the above phrase) means that taxable income to which the loss is actually applied in computing actual tax liability." 52 T.C., at 357-358. In other words, it was held, taxable income refers only to that ordinary income offset by a loss deduction that produces an additional reduction in tax liability under the alternative tax computation method. It is, of course, not unusual in statutory construction to find that a defined term's meaning is substantially modified by an attached clause. But reading "taxable income to which . . . such loss may be carried" as equivalent to "taxable income to which such loss may be carried and deducted, resulting in a reduction of tax liability" gives these phrases a synergistic effect that goes well beyond their natural import. Such a construction subtly redefines "taxable income" in terms of the tax impact of a particular method of tax calculation. It thus implicitly departs from the "term of art" definition of taxable income given in § 63 (a), while discovering a significance in the word "carry" that goes well beyond its usual connotation of a transfer of a loss from the year in which it occurred. Standing alone, this strained reading of the statute's terms falls considerably short of the explicit statutory support the Court has previously required of taxpayers seeking a tax benefit from losses suffered in other years. See, e. g., Woolford Realty Co. v. Rose, 286 U.S. 319, 326.[8] If Congress had intended to allow a loss deduction to offset only ordinary income when the alternative tax calculation method is used, it could easily have said so. *42 II The respondent further asserts that the legislative history and the broad policy behind the loss deduction section of the Code support its interpretation of "taxable income" under § 172 (b). Although, for the reasons stated above, it can hardly be said that the benefit claimed by the respondent is fairly within the statutory language, it is not inappropriate to consider this contention—to consider, in short, whether "the construction sought is in harmony with the statute as an organic whole." See Lewyt Corp. v. Commissioner, 349 U.S. 237, 240. The respondent relies on the Court's opinion in Libson Shops, Inc. v. Koehler, 353 U.S. 382, 386, for a description of the legislative purpose in allowing loss carryovers. In that case the Court said that the net operating loss carryover and carryback provisions "were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year." There were, in fact, several policy considerations behind the decision to allow averaging of income over a number of years. Ameliorating the timing consequences of the annual accounting period makes it possible for shareholders in companies with fluctuating as opposed to stable incomes to receive more nearly equal tax treatment. Without loss offsets, a firm experiencing losses in some periods would not be able to deduct all the expenses of earning income. The consequence would be a tax on capital, borne by shareholders who would pay higher taxes on net income than owners of businesses with stable income.[9] Congress also sought *43 through allowance of loss carryovers to stimulate enterprise and investment, particularly in new businesses or risky ventures where early losses can be carried forward to future more prosperous years.[10] The respondent focuses on the equalizing purposes of § 172 to argue that the Commissioner's insistence on the absorption of the loss deduction by capital gain income is inconsistent with § 172's primary purpose of avoiding the subjection of similarly situated taxpayers to significantly different treatment solely on the basis of arbitrary timing. This argument is based on the observation that, unless it is accepted, the taxpayer's ability to fully benefit from the loss carryover deduction will turn on whether ordinary income in the first year to which the loss may be carried exceeds or is less than the loss deduction. If the ordinary income exceeds the loss, the taxpayer will get the full benefit of the deduction; if the ordinary income is less than the loss, the shortfall will be absorbed by capital gain income without providing an incremental tax reduction. Congress may, of course, be lavish or miserly in remedying perceived inequities in the tax structure. While there is no doubt that Congress through the loss carryover provisions did intend to reduce the arbitrariness inherent in a taxing system based on annual accounting, the history of the loss *44 offset provision does not support the respondent's vision of a Congress seeking perfection in the realization of its objective.[11] Over the years, Congress has shifted the definition of both the kinds of losses and the kinds of income that may be used in calculating the loss offset, indicating its ability in this area of the Internal Revenue Code as in others to make precise definitions and later to modify them in pursuing its broad policy goals.[12] For example, Congress in 1924 specifically provided that a noncorporate taxpayer could use the excess of a loss deduction over ordinary income to reduce the amount of capital gain subject to tax,[13] thus permitting full "use" of the loss deduction by the taxpayer. The inference can be drawn that Congress was aware of the potential "waste" of the deduction otherwise and acted to prevent it. That provision was in turn left out of the 1939 Code, leading to the contrary inference that Congress was aware of the "waste" of the deduction but decided not to remedy it. *45 The 1939 revision of the Code, in fact, tolerated even further "waste" of the loss deduction, providing not only that the loss must be offset against net income (ordinary income and capital gains),[14] but that tax-exempt interest income must also be included in income that the loss was required to offset. This provision had the same arbitrary policy consequences that the respondent decries under the alternative tax computation method applicable here. It required the loss deduction to be "used up" in offsetting tax-exempt income, thus "wasting" a portion of the loss deduction's capacity to reduce overall tax liability. And it made the utility of the loss deduction turn on the accidents of timing. The loss deduction would be "wasted" in offsetting tax-exempt income realized in an early year, while if the tax-exempt income were not realized until a later year the full tax benefit of the loss deduction could have been garnered. Such results cut against any assertion that the loss-deduction provisions have consistently been used completely to minimize arbitrary timing consequences, and indicate that *46 Congress has not hesitated in this area to limit taxpayers to the enjoyment of one tax benefit even though it could have made them eligible for two. The 1954 Internal Revenue Code continued the 1939 Code's definition of ordinary and capital gain income as subject to setoff by the § 172 loss deduction. Although several substantive changes in the loss-deduction section were made and commented on in the legislative reports accompanying the 1954 Code,[15] there was no indication that the addition to § 172 (b) of the phrase "to which such loss may be carried" was meant to signal a willingness to condition the loss deduction's life on its ability to produce full tax benefits for the taxpayer. In view of the predecessor statutes' tolerance of a taxpayer's inability to maximize the tax benefit of a loss deduction, and the complete failure of the Committee Reports in any way to indicate the shift in policy the respondent claims to discern in the 1954 Code revision, the legislative history simply does not support the respondent's contention that the addition in 1954 of the phrase "to which such loss may be carried" was intended to eliminate the requirement that the loss deduction be used to offset capital gain under the alternative tax computation method. We turn finally to an examination of § 172 (b) in the context of the statute as it exists today. If the statute could be viewed as consistently minimizing the arbitrariness of timing consequences, a construction of § 172 (b) inconsistent with that approach might be suspect. Section 172 as a whole has not, however, been drafted with the singleminded devotion to reducing arbitrary timing consequences that the respondent urges should control the decision in this case. The most telling example of Congress' failure to remedy all timing accidents that "rob" a taxpayer of the full benefit *47 of the loss deduction can be found in § 172 (c). That provision defines a "net operating loss" as "the excess of the deductions allowed by this chapter over the gross income." A taxpayer does not have a loss for a particular year unless its deductions exceed its ordinary income and its capital gains. When an ordinary income loss is experienced in a year of negligible capital gains it gives rise to a net operating loss that can be carried over to other years. If that same ordinary income loss comes in a year when the net capital gains exceed that loss, there is no net operating loss under the statute to carry to another year. Because the statute also forbids setting off that ordinary loss against the capital gains before the capital gain tax is computed under the alternative method,[16] the loss' potential tax benefit is arbitrarily "lost" to the taxpayer solely as a result of accidents of timing. Congress, of course, can and occasionally has in the past treated loss years differently from carryover years. But if Congress were intent on substantially eliminating accidents of timing from the calculation of income on an average basis, it would hardly have tolerated such a departure from that purpose at the very inception of the tax benefit provided by § 172. The respondent's argument is further undercut by the holding in Chartier Real Estate Co., not challenged here,[17] that the statute forbids using a loss deduction to offset capital gain income in a loss carryover year. If such an *48 offset were permitted, the taxpayer would benefit by a further reduction in its capital gain tax liability already calculated at a preferential rate. The respondent in effect asks this Court to infer from that deliberate denial of the limited tax benefit that would accrue from using the loss to offset preferentially taxed capital gains, that Congress implicitly meant to confer the even greater tax benefit of using the loss to offset ordinary income taxed at the higher regular rates. In a statutory section that part by part manages explicitly to detail loss calculations on one hand and deductions on the other,[18] such a leap in statutory construction must be much more firmly grounded in a consistently articulated and achieved congressional purpose than can be discerned here. The respondent's broad argument, in short, boils down to a contention that "harmony with the statute as an organic whole" can be achieved in this area only by reading the Code provision so as to give the greatest possible benefits to all taxpayers. For the reasons we have discussed, that is a contention that cannot be accepted. The judgment is Reversed. MR.

Section 172 of the Internal Revenue Code of 1954, as amended, provides that a "net operating loss" experienced by a corporate taxpayer in one year may be carried as a deduction to the preceding three years and the succeeding *34 five years to offset taxable income of those years.[1] The entire loss must be carried to the earliest possible year; any of the loss that is not "absorbed" by that first year *35 may then be carried in turn to succeeding years. The respondent, Foster Lumber Co., sustained a net operating loss of some $42,000 in 1968, which it carried back to 1966. In 1966 the respondent had had ordinary income of about $7,000 and a capital gain of about $167,000. The question presented is whether a loss carryover is "absorbed" by capital gain as well as ordinary income or is instead limited to offsetting only ordinary income. The taxpayer filed a refund suit in Federal District Court challenging the Commissioner's *36 disallowance of its claim that the $35,000 of the 1968 loss not used to offset its 1966 ordinary income survived to reduce its 1967 tax liability. The trial court and the Court of Appeals for the Eighth Circuit agreed with the taxpayer. We granted certiorari to resolve a Circuit conflict on a recurring question of statutory interpretation.[2] I The dispute in this case centers on the meaning of "taxable income" as used in 172 (b) (2) to govern the amount of carrybacks and carryovers that can be successively transferred from one taxable year to another. In relevant part, 172 (b) (2) requires the net operating loss to be carried in full to the earliest taxable year possible, and provides: "The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." Thus when the loss has been carried back to the first year to which it is applicable, the loss "survives" for carryover to a succeeding taxable year only to the extent that it exceeds the taxable income of the earlier year. "Taxable income" is defined in 63 (a) of the Code to mean "gross income, minus the deductions allowed *37 by this chapter." Gross income is in turn defined by 61 (a) of the Code as "all income from whatever source derived," and specifically includes "[g]ains derived from dealings in property." On its face the concept of "taxable income" thus includes capital gains as well as ordinary income. In the absence of a specific provision excluding capital gains,[3] it thus appears that both capital gain and ordinary income must be included in the taxable income that 172 directs must be offset by the loss deduction before any loss excess can be found to be available for transfer forward to the succeeding taxable year. The respondent argues that the Code's prescribed method for calculating the taxes due on its taxable income conflicts with this natural reading of 172. The Code provides two methods for computing taxes due on corporate income, and a corporation is under a statutory duty to employ the method that results in the lower tax. 26 U.S. C. 1201 (a). Under 11, the "regular method," ordinary income and capital gains income are added together to produce taxable income; during the period at issue a 22% tax rate was then imposed on the first $25,000 of taxable income and the remainder was taxed at a 48% rate. Section 1201 (a) of the Code prescribes the "alternative tax," calculated in two steps and applied when resulting in a lower tax liability for the corporation. The first step computes a partial tax on the taxable income reduced by the net long-term capital gain[4] at the *38 regular corporate rates imposed by 11. This step effectively subjects only ordinary income to the partial tax. The second step imposes a 25% tax on the net long-term capital gain. The alternative tax is the sum of the partial tax and the tax on capital gain. In practical terms, the alternative tax does not redefine taxable income, but it does result in a much lower effective tax rate for corporations whose income is in whole or substantial part composed of capital gain. It thus extends to corporations the longstanding statutory policy of taxing income from capital gain at a lower rate than that applicable to ordinary income. The problem from the respondent's point of view is that the mechanics of the alternative tax work in such a way that the potential benefit of the loss deduction may not be fully reflected in reduced tax liability for the taxable year to which the loss is carried. The problem arises when, as in 1966 for the respondent, the "alternative method" governs the calculation of tax liability, and the ordinary income effectively subject to the partial tax under the first step is less than the loss deduction subtracted from it. The Code does not permit the excess loss to be subtracted from the capital gain income before the second step is carried out.[5] Under the alternative method, therefore, the tax benefit of the loss deduction is effectively lost for the carryover year to the extent that it exceeds the ordinary income in that year. This can be seen simply by considering the taxpayer's circumstances in this case. Subtracting the loss deduction of $42,203.12 from the 1966 ordinary income of *39 $7,236.05 under Step 1[6] resulted in a negative balance of $34,967.07; no partial tax was imposed and the 25% rate on the $166,634.81 of capital gains under Step 2 produced a tax of $41,658.70. If the loss deduction had been merely $7,236.05, and thus exactly offset the $7,236.05 of ordinary income, however, the tax due would still have been $41,658.70. The taxpayer therefore asserts that only $7,236.05 of the loss deduction was actually "used" in 1966 and that $34,967.07 remained to be carried forward to reduce its tax liability in 1967. There can be no doubt that if the "regular method" had been applicable to the respondent's taxes in 1966, the loss deduction ($42,203.12) would have been fully "used" to offset capital gains ($166,634.81) as well as ordinary income *40 ($7,236.05), leaving $131,667.74 to be taxed, and a tax bill of $58,200.52.[7] It is clear that the alternative tax produced the lower tax liability despite the inability to fully "use" the loss deduction; the lower tax resulted directly from the favorable rate of taxation of capital gain income prescribed by the alternative method. The question is whether the two "tax benefit" provisions relied on by the respondent— low capital gain taxation under the alternative method and the loss carryback provision—must each be maximized independently of the other or whether Congress instead anticipated that the benefit provided by the loss deduction might on occasion be subsumed in the greater benefit provided by the alternative tax computation method. Section 172 does not explicitly address the question of fit between these two tax benefits, providing simply that "[t]he portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." The respondent contends, and the Tax Court in Chartier Real Estate aff'd per curiam, (CA1), held, that the phrase *41 "to which such loss may be carried" modifies "taxable income" as well as "each of the prior taxable years." The Tax Court in the Chartier case further held that " `taxable income' in this context (as modified by the above phrase) means that taxable income to which the loss is actually applied in computing actual tax liability." -358. In other words, it was held, taxable income refers only to that ordinary income offset by a loss deduction that produces an additional reduction in tax liability under the alternative tax computation method. It is, of course, not unusual in statutory construction to find that a defined term's meaning is substantially modified by an attached clause. But reading "taxable income to which such loss may be carried" as equivalent to "taxable income to which such loss may be carried and deducted, resulting in a reduction of tax liability" gives these phrases a synergistic effect that goes well beyond their natural import. Such a construction subtly redefines "taxable income" in terms of the tax impact of a particular method of tax calculation. It thus implicitly departs from the "term of art" definition of taxable income given in 63 (a), while discovering a significance in the word "carry" that goes well beyond its usual connotation of a transfer of a loss from the year in which it occurred. Standing alone, this strained reading of the statute's terms falls considerably short of the explicit statutory support the Court has previously required of taxpayers seeking a tax benefit from losses suffered in other years. See, e. g., Woolford Realty[8] If Congress had intended to allow a loss deduction to offset only ordinary income when the alternative tax calculation method is used, it could easily have said so. *42 II The respondent further asserts that the legislative history and the broad policy behind the loss deduction section of the Code support its interpretation of "taxable income" under 172 (b). Although, for the reasons stated above, it can hardly be said that the benefit claimed by the respondent is fairly within the statutory language, it is not inappropriate to consider this contention—to consider, in short, whether "the construction sought is in harmony with the statute as an organic whole." See Lewyt The respondent relies on the Court's opinion in Libson Shops, for a description of the legislative purpose in allowing loss carryovers. In that case the Court said that the net operating loss carryover and carryback provisions "were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year." There were, in fact, several policy considerations behind the decision to allow averaging of income over a number of years. Ameliorating the timing consequences of the annual accounting period makes it possible for shareholders in companies with fluctuating as opposed to stable incomes to receive more nearly equal tax treatment. Without loss offsets, a firm experiencing losses in some periods would not be able to deduct all the expenses of earning income. The consequence would be a tax on capital, borne by shareholders who would pay higher taxes on net income than owners of businesses with stable income.[9] Congress also sought *43 through allowance of loss carryovers to stimulate enterprise and investment, particularly in new businesses or risky ventures where early losses can be carried forward to future more prosperous years.[10] The respondent focuses on the equalizing purposes of 172 to argue that the Commissioner's insistence on the absorption of the loss deduction by capital gain income is inconsistent with 172's primary purpose of avoiding the subjection of similarly situated taxpayers to significantly different treatment solely on the basis of arbitrary timing. This argument is based on the observation that, unless it is accepted, the taxpayer's ability to fully benefit from the loss carryover deduction will turn on whether ordinary income in the first year to which the loss may be carried exceeds or is less than the loss deduction. If the ordinary income exceeds the loss, the taxpayer will get the full benefit of the deduction; if the ordinary income is less than the loss, the shortfall will be absorbed by capital gain income without providing an incremental tax reduction. Congress may, of course, be lavish or miserly in remedying perceived inequities in the tax structure. While there is no doubt that Congress through the loss carryover provisions did intend to reduce the arbitrariness inherent in a taxing system based on annual accounting, the history of the loss *44 offset provision does not support the respondent's vision of a Congress seeking perfection in the realization of its objective.[11] Over the years, Congress has shifted the definition of both the kinds of losses and the kinds of income that may be used in calculating the loss offset, indicating its ability in this area of the Internal Revenue Code as in others to make precise definitions and later to modify them in pursuing its broad policy goals.[12] For example, Congress in 1924 specifically provided that a noncorporate taxpayer could use the excess of a loss deduction over ordinary income to reduce the amount of capital gain subject to tax,[13] thus permitting full "use" of the loss deduction by the taxpayer. The inference can be drawn that Congress was aware of the potential "waste" of the deduction otherwise and acted to prevent it. That provision was in turn left out of the 1939 Code, leading to the contrary inference that Congress was aware of the "waste" of the deduction but decided not to remedy it. *45 The 1939 revision of the Code, in fact, tolerated even further "waste" of the loss deduction, providing not only that the loss must be offset against net income (ordinary income and capital gains),[14] but that tax-exempt interest income must also be included in income that the loss was required to offset. This provision had the same arbitrary policy consequences that the respondent decries under the alternative tax computation method applicable here. It required the loss deduction to be "used up" in offsetting tax-exempt income, thus "wasting" a portion of the loss deduction's capacity to reduce overall tax liability. And it made the utility of the loss deduction turn on the accidents of timing. The loss deduction would be "wasted" in offsetting tax-exempt income realized in an early year, while if the tax-exempt income were not realized until a later year the full tax benefit of the loss deduction could have been garnered. Such results cut against any assertion that the loss-deduction provisions have consistently been used completely to minimize arbitrary timing consequences, and indicate that *46 Congress has not hesitated in this area to limit taxpayers to the enjoyment of one tax benefit even though it could have made them eligible for two. The 1954 Internal Revenue Code continued the 1939 Code's definition of ordinary and capital gain income as subject to setoff by the 172 loss deduction. Although several substantive changes in the loss-deduction section were made and commented on in the legislative reports accompanying the 1954 Code,[15] there was no indication that the addition to 172 (b) of the phrase "to which such loss may be carried" was meant to signal a willingness to condition the loss deduction's life on its ability to produce full tax benefits for the taxpayer. In view of the predecessor statutes' tolerance of a taxpayer's inability to maximize the tax benefit of a loss deduction, and the complete failure of the Committee Reports in any way to indicate the shift in policy the respondent claims to discern in the 1954 Code revision, the legislative history simply does not support the respondent's contention that the addition in 1954 of the phrase "to which such loss may be carried" was intended to eliminate the requirement that the loss deduction be used to offset capital gain under the alternative tax computation method. We turn finally to an examination of 172 (b) in the context of the statute as it exists today. If the statute could be viewed as consistently minimizing the arbitrariness of timing consequences, a construction of 172 (b) inconsistent with that approach might be suspect. Section 172 as a whole has not, however, been drafted with the singleminded devotion to reducing arbitrary timing consequences that the respondent urges should control the decision in this case. The most telling example of Congress' failure to remedy all timing accidents that "rob" a taxpayer of the full benefit *47 of the loss deduction can be found in 172 (c). That provision defines a "net operating loss" as "the excess of the deductions allowed by this chapter over the gross income." A taxpayer does not have a loss for a particular year unless its deductions exceed its ordinary income and its capital gains. When an ordinary income loss is experienced in a year of negligible capital gains it gives rise to a net operating loss that can be carried over to other years. If that same ordinary income loss comes in a year when the net capital gains exceed that loss, there is no net operating loss under the statute to carry to another year. Because the statute also forbids setting off that ordinary loss against the capital gains before the capital gain tax is computed under the alternative method,[16] the loss' potential tax benefit is arbitrarily "lost" to the taxpayer solely as a result of accidents of timing. Congress, of course, can and occasionally has in the past treated loss years differently from carryover years. But if Congress were intent on substantially eliminating accidents of timing from the calculation of income on an average basis, it would hardly have tolerated such a departure from that purpose at the very inception of the tax benefit provided by 172. The respondent's argument is further undercut by the holding in Chartier Real Estate Co., not challenged here,[17] that the statute forbids using a loss deduction to offset capital gain income in a loss carryover year. If such an *48 offset were permitted, the taxpayer would benefit by a further reduction in its capital gain tax liability already calculated at a preferential rate. The respondent in effect asks this Court to infer from that deliberate denial of the limited tax benefit that would accrue from using the loss to offset preferentially taxed capital gains, that Congress implicitly meant to confer the even greater tax benefit of using the loss to offset ordinary income taxed at the higher regular rates. In a statutory section that part by part manages explicitly to detail loss calculations on one hand and deductions on the other,[18] such a leap in statutory construction must be much more firmly grounded in a consistently articulated and achieved congressional purpose than can be discerned here. The respondent's broad argument, in short, boils down to a contention that "harmony with the statute as an organic whole" can be achieved in this area only by reading the Code provision so as to give the greatest possible benefits to all taxpayers. For the reasons we have discussed, that is a contention that cannot be accepted. The judgment is Reversed. MR.

Justice Stevens

concurring

Pulley v. Harris

https://www.courtlistener.com/opinion/111092/pulley-v-harris/

https://www.courtlistener.com/api/rest/v3/clusters/111092/

1983-027

While I agree with the basic conclusion of Part III of the Court's opinion — our case law does not establish a constitutional requirement that comparative proportionality review be conducted by an appellate court in every case in which the death penalty is imposed — my understanding of our decisions in Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); and Zant v. Stephens, 462 U.S. 862 (1983), is sufficiently different from that reflected in Part III to prevent me from joining that portion of the opinion. While the cases relied upon by respondent do not establish that comparative proportionality review is a constitutionally required element of a capital sentencing system, I believe the case law does establish that appellate review plays an essential role in eliminating the systemic arbitrariness and capriciousness which infected death penalty schemes invalidated by Furman v. Georgia, 408 U.S. 238 (1972), and hence that some form of meaningful appellate review is constitutionally required. *55 The systemic arbitrariness and capriciousness in the imposition of capital punishment under statutory schemes invalidated by Furman resulted from two basic defects in those schemes. First, the systems were permitting the imposition of capital punishment in broad classes of offenses for which the penalty would always constitute cruel and unusual punishment. Second, even among those types of homicides for which the death penalty could be constitutionally imposed as punishment, the schemes vested essentially unfettered discretion in juries and trial judges to impose the death sentence. Given these defects, arbitrariness and capriciousness in the imposition of the punishment were inevitable, and given the extreme nature of the punishment, constitutionally intolerable. The statutes we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of these defects. Each scheme provided an effective mechanism for categorically narrowing the class of offenses for which the death penalty could be imposed and provided special procedural safeguards including appellate review of the sentencing authority's decision to impose the death penalty. In Gregg, the opinion of Justices Stewart, POWELL, and STEVENS indicated that some form of meaningful appellate review is required, see 428 U.S., at 198, and that opinion, id., at 204-206, as well as JUSTICE WHITE's opinion, see id., at 224, focused on the proportionality review component of the Georgia statute because it was a prominent, innovative, and noteworthy feature that had been specifically designed to combat effectively the systemic problems in capital sentencing which had invalidated the prior Georgia capital sentencing scheme. But observations that this innovation is an effective safeguard do not mean that it is the only method of ensuring that death sentences are not imposed capriciously or that it is the only acceptable form of appellate review. In Proffitt, the joint opinion of Justices Stewart, POWELL, and STEVENS explicitly recognized that the Florida "law differs from that of Georgia in that it does not require the court to conduct any specific form of review." 428 U. S., at *56 250-251. The opinion observed, however, that "meaningful appellate review" was made possible by the requirement that the trial judge justify the imposition of a death sentence with written findings, and further observed that the Supreme Court of Florida had indicated that death sentences would be reviewed to ensure that they are consistent with the sentences imposed in similar cases. Id., at 251. Under the Florida practice as described in the Proffitt opinion, the appellate review routinely involved an independent analysis of the aggravating and mitigating circumstances in the particular case. Id., at 253. Later in the opinion, in response to Proffitt's argument that the Florida appellate review process was "subjective and unpredictable," id., at 258, we noted that the State Supreme Court had "several times" compared the circumstances of a case under review with those of previous cases in which the death sentence had been imposed and that by "following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute." Id., at 259. We did not, however, indicate that the particular procedure that had been followed "several times" was either the invariable routine in Florida,[*] or that it was an indispensable feature of meaningful appellate review. *57 The Texas statute reviewed in Jurek, like the Florida statute reviewed in Proffitt, did not provide for comparative review. We nevertheless concluded "that Texas' capital-sentencing *58 procedures, like those of Georgia and Florida," were constitutional because they assured that "sentences of death will not be `wantonly' or `freakishly' imposed." 428 U.S., at 276. That assurance rested in part on the statutory guarantee of meaningful appellate review. As we stated: "By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law." Ibid. Thus, in all three cases decided on the same day, we relied in part on the guarantee of meaningful appellate review, and we found no reason to differentiate among the three statutes in appraising the quality of the review that was mandated. Last Term in Zant v. Stephens, 462 U.S. 862 (1983), we again reviewed the Georgia sentencing scheme. The Court observed that the appellate review of every death penalty proceeding "to determine whether the sentence was arbitrary or disproportionate" was one of the two primary features upon which the Gregg joint opinion's approval of the Georgia scheme rested. 462 U.S., at 876. While the Court did not focus on the comparative review element of the scheme in reaffirming the constitutionality of the Georgia statute, appellate review of the sentencing decision was deemed essential to upholding its constitutionality. Id., at 876-877, and n. 15. The fact that the Georgia Supreme Court had reviewed the sentence in question "to determine whether it was arbitrary, excessive, or disproportionate" *59A was relied upon to reject a contention that the statute was invalid as applied because of the absence of standards to guide the jury in weighing the significance of aggravating circumstances, id., at 879-880 (footnote describing proportionality review omitted), and the mandatory appellate review was also relied upon in rejecting the argument that the subsequent invalidation of one of the aggravating circumstances found by the jury required setting aside the death sentence, id., at 890. Once again, proportionality review was viewed as an effective, additional safeguard against arbitrary and capricious death sentences. While we did not hold that comparative proportionality review is a mandated component of a constitutionally acceptable capital sentencing system, our decision certainly recognized what was plain from Gregg, Proffitt, and Jurek: that some form of meaningful appellate review is an essential safeguard against the arbitrary and capricious imposition of death sentences by individual juries and judges. To summarize, in each of the statutory schemes approved in our prior cases, as in the scheme we review today, meaningful appellate review is an indispensable component of the Court's determination that the State's capital sentencing procedure is valid. Like the Court, however, I am not persuaded that the particular form of review prescribed by statute in Georgia — comparative proportionality review — is the only method by which an appellate court can avoid the danger that the imposition of the death sentence in a particular case, or a particular class of cases, will be so extraordinary as to violate the Eighth Amendment. Accordingly, I join in all but Part III of the Court's opinion and concur in the judgment.

While I agree with the basic conclusion of Part III of the Court's opinion — our case law does not establish a constitutional requirement that comparative proportionality review be conducted by an appellate court in every case in which the death penalty is imposed — my understanding of our decisions in ; ; ; and is sufficiently different from that reflected in Part III to prevent me from joining that portion of the opinion. While the cases relied upon by respondent do not establish that comparative proportionality review is a constitutionally required element of a capital sentencing system, I believe the case law does establish that appellate review plays an essential role in eliminating the systemic arbitrariness and capriciousness which infected death penalty schemes invalidated by and hence that some form of meaningful appellate review is constitutionally required. *55 The systemic arbitrariness and capriciousness in the imposition of capital punishment under statutory schemes invalidated by Furman resulted from two basic defects in those schemes. First, the systems were permitting the imposition of capital punishment in broad classes of offenses for which the penalty would always constitute cruel and unusual punishment. Second, even among those types of homicides for which the death penalty could be constitutionally imposed as punishment, the schemes vested essentially unfettered discretion in juries and trial judges to impose the death sentence. Given these defects, arbitrariness and capriciousness in the imposition of the punishment were inevitable, and given the extreme nature of the punishment, constitutionally intolerable. The statutes we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of these defects. Each scheme provided an effective mechanism for categorically narrowing the class of offenses for which the death penalty could be imposed and provided special procedural safeguards including appellate review of the sentencing authority's decision to impose the death penalty. In Gregg, the opinion of Justices Stewart, POWELL, and STEVENS indicated that some form of meaningful appellate review is required, see and that opinion, as well as JUSTICE WHITE's opinion, see focused on the proportionality review component of the Georgia statute because it was a prominent, innovative, and noteworthy feature that had been specifically designed to combat effectively the systemic problems in capital sentencing which had invalidated the prior Georgia capital sentencing scheme. But observations that this innovation is an effective safeguard do not mean that it is the only method of ensuring that death sentences are not imposed capriciously or that it is the only acceptable form of appellate review. In Proffitt, the joint opinion of Justices Stewart, POWELL, and STEVENS explicitly recognized that the Florida "law differs from that of Georgia in that it does not require the court to conduct any specific form of review." 428 U. S., at *56 250-251. The opinion observed, however, that "meaningful appellate review" was made possible by the requirement that the trial judge justify the imposition of a death sentence with written findings, and further observed that the Supreme Court of Florida had indicated that death sentences would be reviewed to ensure that they are consistent with the sentences imposed in similar cases. Under the Florida practice as described in the Proffitt opinion, the appellate review routinely involved an independent analysis of the aggravating and mitigating circumstances in the particular case. Later in the opinion, in response to Proffitt's argument that the Florida appellate review process was "subjective and unpredictable," we noted that the State Supreme Court had "several times" compared the circumstances of a case under review with those of previous cases in which the death sentence had been imposed and that by "following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute." We did not, however, indicate that the particular procedure that had been followed "several times" was either the invariable routine in Florida,[*] or that it was an indispensable feature of meaningful appellate review. *57 The Texas statute reviewed in Jurek, like the Florida statute reviewed in Proffitt, did not provide for comparative review. We nevertheless concluded "that Texas' capital-sentencing *58 procedures, like those of Georgia and Florida," were constitutional because they assured that "sentences of death will not be `wantonly' or `freakishly' imposed." That assurance rested in part on the statutory guarantee of meaningful appellate review. As we stated: "By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law." Thus, in all three cases decided on the same day, we relied in part on the guarantee of meaningful appellate review, and we found no reason to differentiate among the three statutes in appraising the quality of the review that was mandated. Last Term in we again reviewed the Georgia sentencing scheme. The Court observed that the appellate review of every death penalty proceeding "to determine whether the sentence was arbitrary or disproportionate" was one of the two primary features upon which the Gregg joint opinion's approval of the Georgia scheme rested. While the Court did not focus on the comparative review element of the scheme in reaffirming the constitutionality of the Georgia statute, appellate review of the sentencing decision was deemed essential to upholding its constitutionality. and n. 15. The fact that the Georgia Supreme Court had reviewed the sentence in question "to determine whether it was arbitrary, excessive, or disproportionate" *59A was relied upon to reject a contention that the statute was invalid as applied because of the absence of standards to guide the jury in weighing the significance of aggravating circumstances, and the mandatory appellate review was also relied upon in rejecting the argument that the subsequent invalidation of one of the aggravating circumstances found by the jury required setting aside the death sentence, Once again, proportionality review was viewed as an effective, additional safeguard against arbitrary and capricious death sentences. While we did not hold that comparative proportionality review is a mandated component of a constitutionally acceptable capital sentencing system, our decision certainly recognized what was plain from Gregg, Proffitt, and Jurek: that some form of meaningful appellate review is an essential safeguard against the arbitrary and capricious imposition of death sentences by individual juries and judges. To summarize, in each of the statutory schemes approved in our prior cases, as in the scheme we review today, meaningful appellate review is an indispensable component of the Court's determination that the State's capital sentencing procedure is valid. Like the Court, however, I am not persuaded that the particular form of review prescribed by statute in Georgia — comparative proportionality review — is the only method by which an appellate court can avoid the danger that the imposition of the death sentence in a particular case, or a particular class of cases, will be so extraordinary as to violate the Eighth Amendment. Accordingly, I join in all but Part III of the Court's opinion and concur in the judgment.

per_curiam

per_curiam

California Ex Rel. Cooper v. Mitchell Brothers' Santa Ana Theater

https://www.courtlistener.com/opinion/110580/california-ex-rel-cooper-v-mitchell-brothers-santa-ana-theater/

https://www.courtlistener.com/api/rest/v3/clusters/110580/

1981-007

The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.[1] The Santa Ana City Attorney brought this action against respondents to abate a public nuisance pursuant to Cal. Civ. Proc. Code Ann. § 731 (West 1980).[2] The complaint *91 alleged that numerous films shown by the respondents were obscene and thus constituted a public nuisance as defined by Cal. Civ. Code Ann. §§ 3479, 3480 (West 1970).[3] The complaint sought, inter alia, court approval of a resolution passed by the Santa Ana City Council revoking all of respondents' operating licenses and permits, a permanent injunction forbidding respondents to show the films named in the complaint, and a 1-year closure of respondents' theater. The trial court determined that the complaint presented both equitable and legal issues and ordered that a jury trial be held on the issues of obscenity, public nuisance, and damages prior to resolution of the equitable issues by the court. The jury trial was divided into liability and damages stages. After the evidence pertaining to obscenity and public nuisance had been presented, the jury was instructed that they could find the films at issue to be obscene only if they were persuaded of such "beyond a reasonable doubt." The jury found 11 films obscene, 4 not obscene, and was unable to reach a verdict on 2 others. Following a jury determination of damages, the court issued *92 findings of fact and conclusions of law with respect to the equitable issues. The court found, independently from the jury verdict and based upon its own viewing, that the same 11 films were obscene beyond a reasonable doubt as the term obscene is defined in Cal. Penal Code Ann. § 311(a) (West 1970).[4] There were cross-appeals, the city asserting, among other things, that the trial court erred in imposing the beyond-reasonable-doubt burden of proof. The California Court of Appeal affirmed on this issue. Relying on this Court's observation that "the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance," Vance v. Universal Amusement Co., 445 U.S. 308, 315 (1980) (per curiam), and JUSTICE BRENNAN's statement that "the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in . . . a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt," McKinney v. Alabama, 424 U.S. 669, 683-684 (1976) (concurring opinion), the court concluded that "one of the required procedures is that obscenity be proved beyond a reasonable doubt."[5]People ex rel. Gow v. Mitchell Bros.' Santa Ana Theater, 114 Cal. App. 3d 923, 936, 171 Cal. Rptr. 85, 93 (1981). We reverse. The purpose of a standard of proof is "to instruct the factfinder concerning the degree of confidence our society *93 thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). Three standards of proof are generally recognized, ranging from the "preponderance of the evidence" standard employed in most civil cases, to the "clear and convincing"[6] standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved "beyond a reasonable doubt" in a criminal prosecution. See Addington v. Texas, 441 U.S. 418, 423-424 (1979). This Court has, on several occasions, held that the "clear and convincing" standard or one of its variants is the appropriate standard of proof in a particular civil case. See Addington v. Texas, supra, at 431 (civil commitment); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 (1971) (libel); Woodby v. INS, 385 U.S. 276, 285 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 159 (1943) (denaturalization). However, the Court has never required the "beyond a reasonable doubt" standard to be applied in a civil case. "This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the `moral force of the criminal law,' In re Winship, 397 U. S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases." Addington v. Texas, supra, at 428. Thus while a State may require proof beyond reasonable doubt in an obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not *94 require such a standard. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.[1] The Santa Ana City Attorney brought this action against respondents to abate a public nuisance pursuant to Cal. Civ. Proc. Code Ann. 731[2] The complaint *91 alleged that numerous films shown by the respondents were obscene and thus constituted a public nuisance as defined by Cal. Civ. Code Ann. 3479, 3480[3] The complaint sought, inter alia, court approval of a resolution passed by the Santa Ana City Council revoking all of respondents' operating licenses and permits, a permanent injunction forbidding respondents to show the films named in the complaint, and a 1-year closure of respondents' theater. The trial court determined that the complaint presented both equitable and legal issues and ordered that a jury trial be held on the issues of obscenity, public nuisance, and damages prior to resolution of the equitable issues by the court. The jury trial was divided into liability and damages stages. After the evidence pertaining to obscenity and public nuisance had been presented, the jury was instructed that they could find the films at issue to be obscene only if they were persuaded of such "beyond a reasonable doubt." The jury found 11 films obscene, 4 not obscene, and was unable to reach a verdict on 2 others. Following a jury determination of damages, the court issued *92 findings of fact and conclusions of law with respect to the equitable issues. The court found, independently from the jury verdict and based upon its own viewing, that the same 11 films were obscene beyond a reasonable doubt as the term obscene is defined in Cal. Penal Code Ann. 311(a)[4] There were cross-appeals, the city asserting, among other things, that the trial court erred in imposing the beyond-reasonable-doubt burden of proof. The California Court of Appeal affirmed on this issue. Relying on this Court's observation that "the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance," and JUSTICE BRENNAN's statement that "the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt," the court concluded that "one of the required procedures is that obscenity be proved beyond a reasonable doubt."[5]People ex rel. We reverse. The purpose of a standard of proof is "to instruct the factfinder concerning the degree of confidence our society * thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Three standards of proof are generally recognized, ranging from the "preponderance of the evidence" standard employed in most civil cases, to the "clear and convincing"[6] standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved "beyond a reasonable doubt" in a criminal prosecution. See This Court has, on several occasions, held that the "clear and convincing" standard or one of its variants is the appropriate standard of proof in a particular civil case. See ; ; ; ; However, the Court has never required the "beyond a reasonable doubt" standard to be applied in a civil case. "This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the `moral force of the criminal law,' In re and we should hesitate to apply it too broadly or casually in noncriminal cases." Thus while a State may require proof beyond reasonable doubt in an obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not *94 require such a standard. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

Justice Douglas

dissenting

Andrews v. Louisville & Nashville R. Co.

https://www.courtlistener.com/opinion/108534/andrews-v-louisville-nashville-r-co/

https://www.courtlistener.com/api/rest/v3/clusters/108534/

1971-106

I If this employee wanted reinstatement and back pay, there would be merit in remitting him to the remedies under the Railway Labor Act. But he does not want that relief. Rather, he desires to quit the railroad, to have no further jobs with it, and to be compensated in dollars for his wrongful discharge. The cases on which the Court relies to overrule Moore v. Illinois Central R. Co., 312 U.S. 630, are quite different. Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, involved claims of existing employees, not for damages for wrongful discharge, but for "additional compensation" and for "reinstatement," and involved a "minor" dispute, that is, a controversy "over the meaning of an existing collective bargaining agreement." Id., at 32-33. Machinists v. Central Airlines, 372 U.S. 682, also involved reinstatement "without loss of seniority and with back pay." Id., at 683. In Republic Steel Corp. v. Maddox, 379 U.S. 650, the aggrieved employee wanted "severance pay" allegedly owed under the collective-bargaining agreement. Id., at 650-651. In Walker v. Southern R. Co., 385 U.S. 196, the dispute basically involved an issue of seniority, though the opinion does not disclose it.[1] *327 The complaint in this case alleges that following an automobile accident, in which the petitioner-employee was involved, the company refused to allow him to go to work on the ground he had not recovered sufficiently to perform his former duties. No issue involving the collective-bargaining agreement was tendered. Petitioner —rightly or wrongly—claimed this was a discharge and that under Georgia law, governing the place where he worked, he had been deprived of wages from the time he recovered from the accident, and that he was deprived "of the expectancy of future earnings . . . until the date of his scheduled retirement." In other words, he asks for no relief under the collective agreement, he does not ask for reinstatement or severance pay, he does not ask for continued employment. He is finished with this railroad, and turns to other activities; he seeks no readmission to the collective group that works for the railroad. He leaves it completely and seeks damages for having been forced out.[2] *328 To remit him to the National Railroad Adjustment Board is to remit him to an agency that has no power to act on this claim. We said as much in Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239. That case involved a grievance that "concerned interpretation of an existing bargaining agreement." Id., at 242. We therefore held that the employee first had to exhaust his remedies before the Adjustment Board. We distinguished the case from Moore as follows: "Our holding here is not inconsistent with our holding in Moore v. Illinois Central R. Co., 312 U.S. 630. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to *329 be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board." 339 U.S., at 244. (Emphasis added.) The Adjustment Board has considerable expertise in construing and applying collective-bargaining agreements, as respects severance pay, seniority, disciplinary actions by management, and the various aspects of reinstatement. But the body of law governing the discharge of employees who do not want or seek reinstatement is not found in customs of the shop or in the collective agreement but in the law of the place where the employee works. The Adjustment Board is not competent to apply that law. In the first place the members of the four divisions of the Adjustment Board authorized by 45 U.S. C. § 153 First (b) presumably do not know the local law governing the employee-employer relationships in all of the States where railroads run. In the second place, the personnel of these divisions of the Adjustment Board may occasionally have lawyers on them but law-trained members are the exception, not the rule. In the third place, an employee seeking damages for reinstatement is normally entitled to a jury trial; and no division of the Adjustment Board ever pretends to serve in that role. The Board, we now know, is made up of laymen; those laymen have no insight into the nuances of Georgia *330 law on the question of damages, and they obviously cannot even purport to give the remedy in damages which a "court suit" entails. The regime of mediation and arbitration under collective-bargaining agreements, such as the one we upheld in Textile Workers v. Lincoln Mills, 353 U.S. 448, and those we have cited under the Railway Labor Act, are important in stabilizing relations between unions and employers. See U. S. Bulk Carriers v. Arguelles, 400 U.S. 351, 355-356. But where the collective-bargaining agreement is not directly involved, and certainly where the individual employee, who tenders his grievance, wants to quit the railroad scene and go elsewhere and sever his communal relation with union and railroad, the case falls out of the ambit of authority given to the mediation or arbitration agencies. The courthouse is the forum for that litigant and I would never close its door to him, unless the mandate of Congress were clear. Even then I do not see how the Seventh Amendment could be circumvented: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Though the case is in the federal courts, this employee sues to enforce a common-law right recognized by the State of Georgia. The only place he can get a trial by jury is in a court. If he sues under a collective-bargaining agreement, he does not sue at common law but under a statutory federal regime. Yet that is not this case. Everyone who joins a union does not give up his civil rights. If he wants to leave the commune and assert his common-law rights, I had supposed that no one could stop him. I think it important under our constitutional regime to leave as much initiative as possible to the individual. What the Court does today is ruthlessly *331 to regiment a worker and force him to sacrifice his constitutional rights in favor of a union. I would give him a choice to pursue such rights as he has under the collective agreement and stay with the union,[3] or to quit it and the railroad and free himself from a regime which he finds oppressive. I would construe the federal law as giving the employee that choice. The choice imposed by the Court today raises serious constitutional questions[4] on which we have not had the benefit of any argument. This is a plain, ordinary, common-law suit not dependent on any term or provision of a collective-bargaining agreement. I cannot, therefore, join those who would close the courthouse door to him. Under the First Amendment, as applied to the States by the Fourteenth, he is petitioning the Government "for a redress of grievances" in the traditional manner of suitors at common law; and by the Seventh Amendment is entitled to a jury trial. II As noted, my basic disagreements with the majority concern the validity of the two assumptions implicit in its holding: (a) that the collective agreement will be sufficiently implicated in this dispute to warrant the application of federal substantive law, and (b) that Congress has vested the Board with jurisdiction to entertain *332 nonreinstatement grievances such as Andrews' complaint. But, even taking these assumptions as correct for purposes of argument, I believe the Court has erred. The majority does not hold that Congress has mandated that the statutory procedure be the exclusive route for adjusting Andrews' grievance. Indeed, that path was foreclosed by our decision in Walker v. Southern R. Co., 385 U.S. 196, holding that prior to the 1966 amendments Congress had evinced no such purpose, and by the fact that nothing in the 1966 amendments themselves evidences an intention to render the statutory channel exclusive for nonreinstatement claims.[5] Rather, today's result is grounded in the authority of the federal courts to fashion the substantive law to be applied to collective agreements. Machinists v. Central Airlines, 372 U.S. 682, 695; see also Textile Workers v. Lincoln Mills, 353 U.S. 448. Even under that assumption, I would not impose the exhaustion requirement upon this narrow and readily identifiable group of discharges. There is no equation of the substantive law to govern agreements under § 301 of the Labor Management Relations Act, into which exclusive arbitration clauses may voluntarily be inserted by the parties and the substantive law to govern railroad contracts, onto which the statutory grievance procedure is superimposed by law. One would not suppose that every doctrine developed under the Labor Management Relations Act, 61 Stat. 136, should be carried over into the apparatus created by the Railway Labor Act. A salutary doctrine under one measure may serve no worthwhile purpose under the other. Yet today the majority transplants *333 the Maddox rule in the foreign soil of the railroad world without any discussion of the ends to be served. Even Maddox cautioned against that result, stating that any overruling of Moore should come only after "the various distinctive features of the administrative remedies provided by [the Railway Labor] Act can be appraised in context, e. g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit." 379 U.S., at 657 n. 14. It is said that the fact that Congress (rather than private parties as in Maddox) fashioned the instant adjustment procedure somehow reinforces a presumption of exclusivity. Yet it is difficult to perceive how that can be when it is also conceded, as mentioned earlier, that Congress itself has never designed its prescription to be the sole avenue of redress for this limited class of claimants. Rather, the significance of the statutory source of this procedure lies in its inflexibility and immunity from modification through collective bargaining. Unlike the Maddox rule, what is done today cannot be undone tomorrow through contract negotiation.[6] That difference would seem to warrant caution to ensure that more is to be gained than lost by closing the court-house door. One clear disadvantage counsels against today's holding. Given the nature of permanent dischargees' weak positions vis-à-vis their former unions, the personnel manning the adjustment mechanism, its haphazard decisional process, and the absence of judicial review of Board decisions, the risk is substantial that valid complaints *334 of permanent discharges such as Andrews will be unfairly treated. The machinery erected by the Railway Labor Act was not meant to be judicial in nature. Rather, it was designed as an arbitration process in which the union and the carrier occupy opposite sides of a bargaining table. As a substitute for the economic battleground, the process envisions decisionmaking on the basis of strength and accountability to the interests represented. Unions will often press one grievance at the expense of another. If Andrews were a continuing union member perhaps he would receive equal representation. But because the union will not have to answer to him if his claim is lost the union may yield its merit in the logrolling process carried on with management. I now have doubt that the reasoning of Maddox was sound insofar as we opined that a union agent will have sufficient interest in faithfully prosecuting the complaint of a former member who "has lost his job and is most likely outside the union door looking in instead of on hand to push for his claim." 379 U.S., at 653 (majority opinion), and 668 (Black, J., dissenting). Indeed, only this Term in Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, we refused to permit a union to represent nonvoting pensioners, holding that under the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S. C. § 151 et seq., the company was not required to bargain with respect to pension plans affecting inactive retirees. We reasoned that "the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits."[7]Id., at 173. *335 Beyond the inherent risk of compromise of a dischargee's claim there lie still further obstacles to fair treatment. First, the internal procedures used by the Board are far afield from those normally associated with impartial adjudication. The Board is exempt from the Administrative Procedure Act, § 2 (a) (1), 5 U.S. C. § 551 (1). One account of its ad hoc procedures leaves little doubt that before that forum Andrews will have no means of proving his allegations: "As the Board has operated in practice, the procedures followed in holding hearings have been quite informal and have differed from the trial-type hearings conducted by other agencies established and maintained by the Federal Government. Disputes are referred to the Adjustment Board by the filing of written submissions. Each submission contains a statement of claim, accompanied by a statement of facts. If the parties can agree, a joint statement of facts is filed; if they cannot agree, separate submissions are filed, stating the facts separately. All submissions are in writing. Parties may be heard in person, by counsel, or by other representatives as they elect. . . . It would be most extraordinary for live testimony to be given by witnesses. There is no requirement that a factual submission or other *336 written statement be sworn. There is no cross-examination of witnesses and no record or transcript of the proceedings. There is no provision for issuance of subpenas or compulsory attendance of witnesses." Hearing on H. R. 706 [1966 Railway Labor Act amendments] before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 89th Cong., 2d Sess., 49 (1966). All of this might be made tolerable if at some point in his journey Andrews could look forward to a judge's inquiry into the affair. But the fact is that whatever order by whatever process the Board may enter will be virtually immune from any judicial review because an award, either of the Adjustment Board or of a special board, is reviewable only for fraud or for lack of jurisdiction. 45 U.S. C. § 153 (p) (proviso). On the other side of the balance, it could not be claimed that permitting a judicial remedy (in addition to an administrative one) would risk economic warfare, especially in light of the estranged relationship of permanent dischargees to their former unions. Nor could it be claimed that a judicial remedy would risk nonuniformity in interpretation of collective agreements inasmuch as courts as well as the Board would be obliged to apply a single body of federal common law. See Maddox, supra, at 658 n. 15. In summary, the danger of unfair treatment of the clearly identifiable class of dischargees represented by Andrews is so great, without any compensating advantages, that I would not confine these claimants to the administrative remedy.

I If this employee wanted reinstatement and back pay, there would be merit in remitting him to the remedies under the Railway Labor Act. But he does not want that relief. Rather, he desires to quit the railroad, to have no further jobs with it, and to be compensated in dollars for his wrongful discharge. The cases on which the Court relies to overrule are quite different. Brotherhood of Railroad involved claims of existing employees, not for damages for wrongful discharge, but for "additional compensation" and for "reinstatement," and involved a "minor" dispute, that is, a controversy "over the meaning of an existing collective bargaining agreement." also involved reinstatement "without loss of seniority and with back pay." In Republic Steel the aggrieved employee wanted "severance pay" allegedly owed under the collective-bargaining agreement. In the dispute basically involved an issue of seniority, though the opinion does not disclose it.[1] *327 The complaint in this case alleges that following an automobile accident, in which the petitioner-employee was involved, the company refused to allow him to go to work on the ground he had not recovered sufficiently to perform his former duties. No issue involving the collective-bargaining agreement was tendered. Petitioner —rightly or wrongly—claimed this was a discharge and that under Georgia law, governing the place where he worked, he had been deprived of wages from the time he recovered from the accident, and that he was deprived "of the expectancy of future earnings until the date of his scheduled retirement." In other words, he asks for no relief under the collective agreement, he does not ask for reinstatement or severance pay, he does not ask for continued employment. He is finished with this railroad, and turns to other activities; he seeks no readmission to the collective group that works for the railroad. He leaves it completely and seeks damages for having been forced out.[2] *328 To remit him to the National Railroad Adjustment Board is to remit him to an agency that has no power to act on this claim. We said as much in That case involved a grievance that "concerned interpretation of an existing bargaining agreement." We therefore held that the employee first had to exhaust his remedies before the Adjustment Board. We distinguished the case from Moore as follows: "Our holding here is not inconsistent with our holding in Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to *329 be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board." (Emphasis added.) The Adjustment Board has considerable expertise in construing and applying collective-bargaining agreements, as respects severance pay, seniority, disciplinary actions by management, and the various aspects of reinstatement. But the body of law governing the discharge of employees who do not want or seek reinstatement is not found in customs of the shop or in the collective agreement but in the law of the place where the employee works. The Adjustment Board is not competent to apply that law. In the first place the members of the four divisions of the Adjustment Board authorized by 45 U.S. C. 153 First (b) presumably do not know the local law governing the employee-employer relationships in all of the States where railroads run. In the second place, the personnel of these divisions of the Adjustment Board may occasionally have lawyers on them but law-trained members are the exception, not the rule. In the third place, an employee seeking damages for reinstatement is normally entitled to a jury trial; and no division of the Adjustment Board ever pretends to serve in that role. The Board, we now know, is made up of laymen; those laymen have no insight into the nuances of Georgia *330 law on the question of damages, and they obviously cannot even purport to give the remedy in damages which a "court suit" entails. The regime of mediation and arbitration under collective-bargaining agreements, such as the one we upheld in Textile and those we have cited under the Railway Labor Act, are important in stabilizing relations between unions and employers. See U. S. Bulk But where the collective-bargaining agreement is not directly involved, and certainly where the individual employee, who tenders his grievance, wants to quit the railroad scene and go elsewhere and sever his communal relation with union and railroad, the case falls out of the ambit of authority given to the mediation or arbitration agencies. The courthouse is the forum for that litigant and I would never close its door to him, unless the mandate of Congress were clear. Even then I do not see how the Seventh Amendment could be circumvented: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Though the case is in the federal courts, this employee sues to enforce a common-law right recognized by the State of Georgia. The only place he can get a trial by jury is in a court. If he sues under a collective-bargaining agreement, he does not sue at common law but under a statutory federal regime. Yet that is not this case. Everyone who joins a union does not give up his civil rights. If he wants to leave the commune and assert his common-law rights, I had supposed that no one could stop him. I think it important under our constitutional regime to leave as much initiative as possible to the individual. What the Court does today is ruthlessly *331 to regiment a worker and force him to sacrifice his constitutional rights in favor of a union. I would give him a choice to pursue such rights as he has under the collective agreement and stay with the union,[3] or to quit it and the railroad and free himself from a regime which he finds oppressive. I would construe the federal law as giving the employee that choice. The choice imposed by the Court today raises serious constitutional questions[4] on which we have not had the benefit of any argument. This is a plain, ordinary, common-law suit not dependent on any term or provision of a collective-bargaining agreement. I cannot, therefore, join those who would close the courthouse door to him. Under the First Amendment, as applied to the States by the Fourteenth, he is petitioning the Government "for a redress of grievances" in the traditional manner of suitors at common law; and by the Seventh Amendment is entitled to a jury trial. II As noted, my basic disagreements with the majority concern the validity of the two assumptions implicit in its holding: (a) that the collective agreement will be sufficiently implicated in this dispute to warrant the application of federal substantive law, and (b) that Congress has vested the Board with jurisdiction to entertain *332 nonreinstatement grievances such as Andrews' complaint. But, even taking these assumptions as correct for purposes of argument, I believe the Court has erred. The majority does not hold that Congress has mandated that the statutory procedure be the exclusive route for adjusting Andrews' grievance. Indeed, that path was foreclosed by our decision in holding that prior to the 1966 amendments Congress had evinced no such purpose, and by the fact that nothing in the 1966 amendments themselves evidences an intention to render the statutory channel exclusive for nonreinstatement claims.[5] Rather, today's result is grounded in the authority of the federal courts to fashion the substantive law to be applied to collective agreements. ; see also Textile Even under that assumption, I would not impose the exhaustion requirement upon this narrow and readily identifiable group of discharges. There is no equation of the substantive law to govern agreements under 301 of the Labor Management Relations Act, into which exclusive arbitration clauses may voluntarily be inserted by the parties and the substantive law to govern railroad contracts, onto which the statutory grievance procedure is superimposed by law. One would not suppose that every doctrine developed under the Labor Management Relations Act, should be carried over into the apparatus created by the Railway Labor Act. A salutary doctrine under one measure may serve no worthwhile purpose under the other. Yet today the majority transplants *333 the rule in the foreign soil of the railroad world without any discussion of the ends to be served. Even cautioned against that result, stating that any overruling of Moore should come only after "the various distinctive features of the administrative remedies provided by [the Railway Labor] Act can be appraised in context, e. g., the make-up of the Adjustment Board, the scope of review from monetary awards, and the ability of the Board to give the same remedies as could be obtained by court suit." n. 14. It is said that the fact that Congress (rather than private parties as in ) fashioned the instant adjustment procedure somehow reinforces a presumption of exclusivity. Yet it is difficult to perceive how that can be when it is also conceded, as mentioned earlier, that Congress itself has never designed its prescription to be the sole avenue of redress for this limited class of claimants. Rather, the significance of the statutory source of this procedure lies in its inflexibility and immunity from modification through collective bargaining. Unlike the rule, what is done today cannot be undone tomorrow through contract negotiation.[6] That difference would seem to warrant caution to ensure that more is to be gained than lost by closing the court-house door. One clear disadvantage counsels against today's holding. Given the nature of permanent dischargees' weak positions vis-à-vis their former unions, the personnel manning the adjustment mechanism, its haphazard decisional process, and the absence of judicial review of Board decisions, the risk is substantial that valid complaints *334 of permanent discharges such as Andrews will be unfairly treated. The machinery erected by the Railway Labor Act was not meant to be judicial in nature. Rather, it was designed as an arbitration process in which the union and the carrier occupy opposite sides of a bargaining table. As a substitute for the economic battleground, the process envisions decisionmaking on the basis of strength and accountability to the interests represented. Unions will often press one grievance at the expense of another. If Andrews were a continuing union member perhaps he would receive equal representation. But because the union will not have to answer to him if his claim is lost the union may yield its merit in the logrolling process carried on with management. I now have doubt that the reasoning of was sound insofar as we opined that a union agent will have sufficient interest in faithfully prosecuting the complaint of a former member who "has lost his job and is most likely outside the union door looking in instead of on hand to push for his claim." and 668 (Black, J., dissenting). Indeed, only this Term in Chemical we refused to permit a union to represent nonvoting pensioners, holding that under the National Labor Relations Act, as amended, 29 U.S. C. 151 et seq., the company was not required to bargain with respect to pension plans affecting inactive retirees. We reasoned that "the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits."[7] at 173. *335 Beyond the inherent risk of compromise of a dischargee's claim there lie still further obstacles to fair treatment. First, the internal procedures used by the Board are far afield from those normally associated with impartial adjudication. The Board is exempt from the Administrative Procedure Act, 2 (a) (1), 5 U.S. C. 551 (1). One account of its ad hoc procedures leaves little doubt that before that forum Andrews will have no means of proving his allegations: "As the Board has operated in practice, the procedures followed in holding hearings have been quite informal and have differed from the trial-type hearings conducted by other agencies established and maintained by the Federal Government. Disputes are referred to the Adjustment Board by the filing of written submissions. Each submission contains a statement of claim, accompanied by a statement of facts. If the parties can agree, a joint statement of facts is filed; if they cannot agree, separate submissions are filed, stating the facts separately. All submissions are in writing. Parties may be heard in person, by counsel, or by other representatives as they elect. It would be most extraordinary for live testimony to be given by witnesses. There is no requirement that a factual submission or other *336 written statement be sworn. There is no cross-examination of witnesses and no record or transcript of the proceedings. There is no provision for issuance of subpenas or compulsory attendance of witnesses." Hearing on H. R. 706 [1966 Railway Labor Act amendments] before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 89th Cong., 2d Sess., 49 (1966). All of this might be made tolerable if at some point in his journey Andrews could look forward to a judge's inquiry into the affair. But the fact is that whatever order by whatever process the Board may enter will be virtually immune from any judicial review because an award, either of the Adjustment Board or of a special board, is reviewable only for fraud or for lack of jurisdiction. 45 U.S. C. 153 (p) (proviso). On the other side of the balance, it could not be claimed that permitting a judicial remedy (in addition to an administrative one) would risk economic warfare, especially in light of the estranged relationship of permanent dischargees to their former unions. Nor could it be claimed that a judicial remedy would risk nonuniformity in interpretation of collective agreements inasmuch as courts as well as the Board would be obliged to apply a single body of federal common law. See at 658 n. 15. In summary, the danger of unfair treatment of the clearly identifiable class of dischargees represented by Andrews is so great, without any compensating advantages, that I would not confine these claimants to the administrative remedy.

Justice Rehnquist

majority

Gratz v. Bollinger

https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/

https://www.courtlistener.com/api/rest/v3/clusters/130154/

2002-077

We granted certiorari in this case to decide whether "the University of Michigan's use of racial preferences in undergraduate *250 admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S. C. § 2000d), or 42 U.S. C. § 1981." Brief *251 for Petitioners i. Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court's decision upholding the guidelines. I A Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University's determination that, although Gratz was "`well qualified,'" she was "`less competitive than the students who ha[d] been admitted on first review.'" App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999. Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his "`academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.'" Ibid. Hamacher's application was subsequently denied in April 1997, and he enrolled at Michigan State University.[1] *252 In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University, the LSA,[2] James Duderstadt, and Lee Bollinger.[3] Petitioners' complaint was a class-action suit alleging "violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment . . ., and for racial discrimination in violation of 42 U.S. C. §§ 1981, 1983 and 2000d et seq." App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners' "rights to nondiscriminatory treatment," an injunction prohibiting respondents from "continuing to discriminate on the basis of race in violation of the Fourteenth Amendment," and an order requiring the LSA to offer Hamacher admission as a transfer student.[4]Id., at 40. The District Court granted petitioners' motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of "those individuals who applied for and were not granted admission to the College of *253 Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of race in considering their application for admission." App. 70-71. And Hamacher, whose claim the District Court found to challenge a "`practice of racial discrimination pervasively applied on a classwide basis,'" was designated as the class representative. Id., at 67, 70. The court also granted petitioners' motion to bifurcate the proceedings into a liability and damages phase. Id., at 71. The liability phase was to determine "whether [respondents'] use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution." Id., at 70.[5] B The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University's Office of Undergraduate Admissions (OUA) oversees the LSA admissions process.[6] In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines. OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers race. During all periods relevant to this litigation, the University *254 has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities," and it is undisputed that the University admits "virtually every qualified . . . applicant" from these groups. App. to Pet. for Cert. 111a. During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the "SCUGA" factors. These factors included the quality of an applicant's high school (S), the strength of an applicant's high school curriculum (C), an applicant's unusual circumstances (U), an applicant's geographical residence (G), and an applicant's alumni relationships (A). After these scores were combined to produce an applicant's "GPA 2" score, the reviewing admissions counselors referenced a set of "Guidelines" tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration. In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status.[7] For example, as a Caucasian in-state applicant, Gratz's GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz's scores would have fallen within a cell calling for admission. *255 In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant's GPA 2 score was restructured to include additional point values under the "U" category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher's GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted. Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a "selection index," on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject). Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant's high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a "miscellaneous" category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the "`development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how race and ethnicity [were] considered in admissions.'" App. to Pet. for Cert. 116a. *256 In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the University's belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of "protected seats." Specific groups—including athletes, foreign students, ROTC candidates, and underrepresented minorities—were "protected categories" eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list. During 1999 and 2000, the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, "flag" an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University,[8] (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the University's composition *257 of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography. After reviewing "flagged" applications, the ARC determines whether to admit, defer, or deny each applicant. C The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA's use of race as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S. C. § 2000d, and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), to respond to petitioners' arguments. As discussed in greater detail in the Court's opinion in Grutter v. Bollinger, post, at 323-325, Justice Powell, in Bakke, expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. See 438 U.S., at 317. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University's past and current discrimination against minorities.[9] *258 The District Court began its analysis by reviewing this Court's decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2000). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F. Supp. 2d, at 820-821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race, 122 F. Supp. 2d, at 820-821. The District Court concluded that respondents and their amici curiae had presented "solid evidence" that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822-824. The court next considered whether the LSA's admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powell's opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University's interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized that the LSA's current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an underrepresented minority group, in the District Court's view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSA's program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828-829. The court also dismissed petitioners' assertion that the LSA's current system is nothing more than a means by which to achieve racial balancing. See id., at 831. The court explained that the LSA does not seek to *259 achieve a certain proportion of minority students, let alone a proportion that represents the community. See ibid. The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court's view, the University's prior practice of "protecting" or "reserving" seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See id., at 832. This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell's opinion in Bakke.[10] See 122 F. Supp. 2d, at 832. Based on these findings, the court granted petitioners' motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and respondents' motion with respect to the LSA's admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners' request for injunctive relief. See id., at 814. The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U.S. C. § 1292(b). Both parties appealed aspects of the District Court's rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as *260 well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances. We did so. See 537 U.S. 1044 (2002). II As they have throughout the course of this litigation, petitioners contend that the University's consideration of race in its undergraduate admissions decisions violates § 1 of the Equal Protection Clause of the Fourteenth Amendment,[11] Title VI,[12] and 42 U.S. C. § 1981.[13] We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims. A Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the University's use of race in undergraduate admissions. He first contends that because Hamacher did not "actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best `conjectural or hypothetical' rather than `real and immediate.'" Post, at 285 (dissenting opinion). But whether Hamacher "actually applied" for admission as a transfer student is not *261 determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher "intends to transfer to the University of Michigan when defendants cease the use of race as an admissions preference." App. 67.[14] It is well established that intent may be relevant to standing in an equal protection challenge. In Clements v. Fashing, 457 U.S. 957 (1982), for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the "automatic resignation" provision they were challenging. Id., at 962; accord, Turner v. Fouche, 396 U.S. 346, 361-362, n. 23 (1970) (plaintiff who did not own property had standing to challenge property ownership requirement for membership on school board even though there was no evidence that plaintiff had applied and been rejected); Quinn v. Millsap, 491 U.S. 95, 103, n. 8 (1989) (plaintiffs who did not own property had standing to challenge property ownership requirement for membership on government board even though they lacked standing to challenge the requirement "as applied"). Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993), we considered whether an association challenging an ordinance that gave preferential treatment to certain *262 minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. . . . And in the context of a challenge to a set-aside program, the `injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of contract." Id., at 666. We concluded that in the face of such a barrier, "[t]o establish standing . . ., a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." Ibid. In bringing his equal protection challenge against the University's use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of race in undergraduate admissions. JUSTICE STEVENS raises a second argument as to standing. He contends that the University's use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 286-287 (dissenting opinion). *263 As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.[15] From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University's use of race in undergraduate admissions and its asserted justification of promoting "diversity." See, e. g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondents "from continuing to discriminate on the basis of race." App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. Id., at 35-36. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative *264 for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see id., at 61-69, and found "the record utterly devoid of the presence of . . . antagonism between the interests of . . . Hamacher, and the members of the class which [he] seek[s] to represent," id., at 61. Finally, the District Court concluded that petitioners' claim was appropriate for class treatment because the University's "`practice of racial discrimination pervasively applied on a classwide basis.'" Id., at 67. The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70. JUSTICE STEVENS cites Blum v. Yaretsky, 457 U.S. 991 (1982), in arguing that the District Court erred. Post, at 289. In Blum, we considered a class-action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State's Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that "[n]othing in the record . . . suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers." 457 U.S., at 1001. And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. Id., at 1001-1002 (noting, for example, that transfers to lower levels of care implicated beneficiaries' property interests given the concomitant decrease in Medicaid benefits, while transfers to higher levels of care did not). *265 In the present case, the University's use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions. Respondents challenged Hamacher's standing at the certification stage, but never did so on the grounds that the University's use of race in undergraduate transfer admissions involves a different set of concerns than does its use of race in freshman admissions. Respondents' failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled "COLLEGE OF LITERATURE, SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS," which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e. g., 2 App. in No. 01-1333 etc. (CA6), pp. 507-542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University's stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled "CONTRIBUTION TO A DIVERSE STUDENT BODY." 2 id., at 531. This section explained that any transfer applicant who could "contribut[e] to a diverse student body" should "generally be admitted" even with substantially lower qualifications than those required of other transfer applicants. Ibid. (emphasis added). To determine whether a transfer applicant was capable of "contribut[ing] to a diverse student body," admissions counselors were instructed to determine whether that transfer applicant met the "criteria as defined in Section IV of the `U' category of [the] SCUGA" factors used to assess *266 freshman applicants. Ibid. Section IV of the "U" category, entitled "Contribution to a Diverse Class," explained that "[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class." 1 id., at 432. These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicant's contribution to diversity. See 3 id., at 1133-1134, 1153-1154. Indeed, the only difference between the University's use of race in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of race in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the race of its undergraduate applicants.[16] *267 Particularly instructive here is our statement in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982), that "[i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the . . . requirements of Rule 23(a)." Id., at 159, n. 15 (emphasis added). Here, the District Court found that the sole rationale the University had provided for any of its race-based preferences in undergraduate admissions was the interest in "the educational benefits that result from having a diverse student body." App. to Pet. for Cert. 8a. And petitioners argue that an interest in "diversity" is not a compelling state interest that is ever capable of justifying the use of race in undergraduate admissions. See, e. g., Brief for Petitioners 11-13. In sum, the same set of concerns is implicated by the University's use of race in evaluating all undergraduate admissions applications under the guidelines.[17] We therefore agree with the District Court's *268 carefully considered decision to certify this class-action challenge to the University's consideration of race in undergraduate admissions. See App. 67 ("`It is a singular policy... applied on a classwide basis'"); cf. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) ("[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action" (internal quotation marks omitted)). Indeed, class-action treatment was particularly important in this case because "the claims of the individual students run the risk of becoming moot" and the "[t]he class action vehicle . . . provides a mechanism for ensuring that a justiciable claim is before the Court." App. 69. Thus, we think it clear that Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain this class-action challenge to the University's use of race in undergraduate admissions. B Petitioners argue, first and foremost, that the University's use of race in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that "diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means." Id., at 17-18, 40-41. But for the reasons set forth today in Grutter v. Bollinger, post, at 327-333, the Court has rejected these arguments of petitioners. *269 Petitioners alternatively argue that even if the University's interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University's use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not "remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in Bakke." Brief for Petitioners 18. Respondents reply that the University's current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell.[18] They claim that their program "hews closely" to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondent Bollinger et al. 32. Specifically, respondents contend that the LSA's policy provides the individualized consideration that "Justice Powell considered a hallmark of a constitutionally appropriate admissions program." Id., at 35. For the reasons set out below, we do not agree. *270 It is by now well established that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995). This "`standard of review. .. is not dependent on the race of those burdened or benefited by a particular classification.' " Ibid. (quoting Richmond v. J. A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion)). Thus, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny." Adarand, 515 U. S., at 224. To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of race in its current admissions program employs "narrowly tailored measures that further compelling governmental interests." Id., at 227. Because "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail "`a most searching examination.' " Adarand, supra, at 223 (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 273 (1986) (plurality opinion of Powell, J.)). We find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program. In Bakke, Justice Powell reiterated that "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake." 438 U.S., at 307. He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which "race or ethnic background may be *271 deemed a `plus' in a particular applicant's file." Id., at 317. He explained that such a program might allow for "[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." Ibid. Such a system, in Justice Powell's view, would be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant." Ibid. Justice Powell's opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 618 (1990) (O'Connor, J., dissenting) (concluding that the Federal Communications Commission's policy, which "embodie[d] the related notions . . . that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] `likely to provide [a] distinct perspective,'" "impermissibly value[d] individuals" based on a presumption that "persons think in a manner associated with their race"). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application. The current LSA policy does not provide such individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the University. The only consideration that accompanies this distribution of *272 points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a "particular black applicant" could be considered without being decisive, see Bakke, 438 U. S., at 317, the LSA's automatic distribution of 20 points has the effect of making "the factor of race.. . decisive" for virtually every minimally qualified underrepresented minority applicant. Ibid.[19] Also instructive in our consideration of the LSA's system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to "illustrate the kind of significance attached to race" under the Harvard College program. Id., at 324. It provided as follows: "The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently-abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent *273 upon race but sometimes associated with it." Ibid. (emphasis added). This example further demonstrates the problematic nature of the LSA's admissions system. Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA's system. See App. 234-235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants the individualized selection process described in Harvard's example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his "extraordinary talent."[20] Respondents emphasize the fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant "with promise of superior academic performance," would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University *274 would never consider student A's individual background, experiences, and characteristics to assess his individual "potential contribution to diversity," Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted. It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the "review committee can look at the applications individually and ignore the points," once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA's admissions program. See App. to Pet. for Cert. 117a ("The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG").[21] Additionally, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant. *275 Respondents contend that "[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the . . . admissions system" upheld by the Court today in Grutter. Brief for Respondent Bollinger et al. 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson Co., 488 U. S., at 508 (citing Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting "`administrative convenience' " as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis. We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.[22] We further find that the admissions policy also violates Title VI and *276 42 U.S. C. § 1981.[23] Accordingly, we reverse that portion of the District Court's decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion. It is so ordered.

We granted certiorari in this case to decide whether "the University of Michigan's use of racial preferences in undergraduate *250 admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S. C. d), or 42 U.S. C. 1981." Brief *251 for Petitioners i. Because we find that the manner in which the University considers the of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court's decision upholding the guidelines. I A Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University's determination that, although Gratz was "`well qualified,'" she was "`less competitive than the students who ha[d] been admitted on first review.'" App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999. Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his "`academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.'" Hamacher's application was subsequently denied in April 1997, and he enrolled at Michigan State University.[1] *252 In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University, the LSA,[2] James Duderstadt, and Lee Bollinger.[3] Petitioners' complaint was a class-action suit alleging "violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment, and for racial discrimination in violation of 42 U.S. C. 1981, 1983 and d et seq." App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners' "rights to nondiscriminatory treatment," an injunction prohibiting respondents from "continuing to discriminate on the basis of in violation of the Fourteenth Amendment," and an order requiring the LSA to offer Hamacher admission as a transfer student.[4] at 40. The District Court granted petitioners' motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of "those individuals who applied for and were not granted admission to the College of *253 Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of in considering their application for admission." App. 70-71. And Hamacher, whose claim the District Court found to challenge a "`practice of racial discrimination pervasively applied on a classwide basis,'" was designated as the class representative. The court also granted petitioners' motion to bifurcate the proceedings into a liability and damages phase. The liability phase was to determine "whether [respondents'] use of as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."[5] B The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University's Office of Undergraduate Admissions (OUA) oversees the LSA admissions process.[6] In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines. OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. OUA also considers During all periods relevant to this litigation, the University *254 has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities," and it is undisputed that the University admits "virtually every qualified applicant" from these groups. App. to Pet. for Cert. 111a. During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the "SCUGA" factors. These factors included the quality of an applicant's high school (S), the strength of an applicant's high school curriculum (C), an applicant's unusual circumstances (U), an applicant's geographical residence (G), and an applicant's alumni relationships (A). After these scores were combined to produce an applicant's "GPA 2" score, the reviewing admissions counselors referenced a set of "Guidelines" tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration. In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status.[7] For example, as a Caucasian in-state applicant, Gratz's GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz's scores would have fallen within a cell calling for admission. *255 In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant's GPA 2 score was restructured to include additional point values under the "U" category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher's GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted. Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a "selection index," on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject). Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant's high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a "miscellaneous" category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the "`development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how and ethnicity [were] considered in admissions.'" App. to Pet. for Cert. 116a. *256 In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the University's belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of "protected seats." Specific groups—including athletes, foreign students, ROTC candidates, and underrepresented minorities—were "protected categories" eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list. During 1999 and the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, "flag" an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University,[8] (2) has achieved a minimum selection index score, and (3) possesses a quality or characteristic important to the University's composition *257 of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented ethnicity, or geography. After reviewing "flagged" applications, the ARC determines whether to admit, defer, or deny each applicant. C The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA's use of as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 42 U.S. C. d, and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell's opinion in Regents of Univ. of to respond to petitioners' arguments. As discussed in greater detail in the Court's opinion in Grutter v. Bollinger, post, at 323-325, Justice Powell, in expressed the view that the consideration of as a factor in admissions might in some cases serve a compelling government interest. See Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University's past and current discrimination against minorities.[9] *258 The District Court began its analysis by reviewing this Court's decision in See Although the court acknowledged that no decision from this Court since has explicitly accepted the diversity rationale discussed by Justice Powell, see -821, it also concluded that this Court had not, in the years since ruled out such a justification for the use of -821. The District Court concluded that respondents and their amici curiae had presented "solid evidence" that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See The court next considered whether the LSA's admissions guidelines were narrowly tailored to achieve that interest. See Again relying on Justice Powell's opinion in the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University's interest in the educational benefits that flow from a racially and ethnically diverse student body. See The court emphasized that the LSA's current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See The award of 20 points for membership in an underrepresented minority group, in the District Court's view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See Likewise, the court rejected the assertion that the LSA's program operates like the two-track system Justice Powell found objectionable in on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, -829. The court also dismissed petitioners' assertion that the LSA's current system is nothing more than a means by which to achieve racial balancing. See The court explained that the LSA does not seek to *259 achieve a certain proportion of minority students, let alone a proportion that represents the community. See The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court's view, the University's prior practice of "protecting" or "reserving" seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell's opinion in[10] See 122 F. Supp. 2d, Based on these findings, the court granted petitioners' motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and respondents' motion with respect to the LSA's admissions programs for 1999 and See Accordingly, the District Court denied petitioners' request for injunctive relief. See The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U.S. C. 1292(b). Both parties appealed aspects of the District Court's rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners asked this Court to grant certiorari in this case as *260 well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of in university admissions in a wider range of circumstances. We did so. See II As they have throughout the course of this litigation, petitioners contend that the University's consideration of in its undergraduate admissions decisions violates 1 of the Equal Protection Clause of the Fourteenth Amendment,[11] Title VI,[12] and 42 U.S. C. 1981.[13] We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims. A Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the University's use of in undergraduate admissions. He first contends that because Hamacher did not "actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best `conjectural or hypothetical' rather than `real and immediate.'" Post, at 285 (dissenting opinion). But whether Hamacher "actually applied" for admission as a transfer student is not *261 determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher "intends to transfer to the University of Michigan when defendants cease the use of as an admissions preference." App. 67.[14] It is well established that intent may be relevant to standing in an equal protection challenge. In for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the "automatic resignation" provision they were challenging. ; accord, ; Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of we considered whether an association challenging an ordinance that gave preferential treatment to certain *262 minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the `injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of contract." We concluded that in the face of such a barrier, "[t]o establish standing, a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis." In bringing his equal protection challenge against the University's use of in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of in undergraduate admissions. JUSTICE STEVENS raises a second argument as to standing. He contends that the University's use of in undergraduate transfer admissions differs from its use of in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 286-287 (dissenting opinion). *263 As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.[15] From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University's use of in undergraduate admissions and its asserted justification of promoting "diversity." See, e. g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondents "from continuing to discriminate on the basis of" App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 70. The court further concluded that Hamacher was an adequate representative *264 for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see and found "the record utterly devoid of the presence of antagonism between the interests of Hamacher, and the members of the class which [he] seek[s] to represent," Finally, the District Court concluded that petitioners' claim was appropriate for class treatment because the University's "`practice of racial discrimination pervasively applied on a classwide basis.'" The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70. JUSTICE STEVENS cites in arguing that the District Court erred. Post, at 289. In Blum, we considered a class-action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State's Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher levels of care because they had not been threatened with such transfers. We agreed. We noted that "[n]othing in the record suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers." And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. *265 In the present case, the University's use of in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of in undergraduate freshman admissions. Respondents challenged Hamacher's standing at the certification stage, but never did so on the grounds that the University's use of in undergraduate transfer admissions involves a different set of concerns than does its use of in freshman admissions. Respondents' failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled "COLLEGE OF LITERATURE, SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS," which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e. g., 2 App. in No. 01-1333 etc. (CA6), pp. 507-542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University's stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled "CONTRIBUTION TO A DIVERSE STUDENT BODY." 2 This section explained that any transfer applicant who could "contribut[e] to a diverse student body" should "generally be admitted" even with substantially lower qualifications than those required of other transfer applicants. To determine whether a transfer applicant was capable of "contribut[ing] to a diverse student body," admissions counselors were instructed to determine whether that transfer applicant met the "criteria as defined in Section IV of the `U' category of [the] SCUGA" factors used to assess *266 freshman applicants. Section IV of the "U" category, entitled "Contribution to a Diverse Class," explained that "[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class." 1 These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicant's contribution to diversity. See 3 Indeed, the only difference between the University's use of in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the of its undergraduate applicants.[16] *267 Particularly instructive here is our statement in General Telephone of that "[i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the requirements of Rule 23(a)." Here, the District Court found that the sole rationale the University had provided for any of its -based preferences in undergraduate admissions was the interest in "the educational benefits that result from having a diverse student body." App. to Pet. for Cert. 8a. And petitioners argue that an interest in "diversity" is not a compelling state interest that is ever capable of justifying the use of in undergraduate admissions. See, e. g., Brief for Petitioners 11-13. In sum, the same set of concerns is implicated by the University's use of in evaluating all undergraduate admissions applications under the guidelines.[17] We therefore agree with the District Court's *268 carefully considered decision to certify this class-action challenge to the University's consideration of in undergraduate admissions. See App. 67 ("`It is a singular policy. applied on a classwide basis'"); cf. Coopers & Indeed, class-action treatment was particularly important in this case because "the claims of the individual students run the risk of becoming moot" and the "[t]he class action vehicle provides a mechanism for ensuring that a justiciable claim is before the Court." App. 69. Thus, we think it clear that Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain this class-action challenge to the University's use of in undergraduate admissions. B Petitioners argue, first and foremost, that the University's use of in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that "diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means." But for the reasons set forth today in Grutter v. Bollinger, post, at 327-333, the Court has rejected these arguments of petitioners. *269 Petitioners alternatively argue that even if the University's interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University's use of in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not "remotely resemble the kind of consideration of and ethnicity that Justice Powell endorsed in" Brief for Petitioners 18. Respondents reply that the University's current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell.[18] They claim that their program "hews closely" to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondent Bollinger et al. 32. Specifically, respondents contend that the LSA's policy provides the individualized consideration that "Justice Powell considered a hallmark of a constitutionally appropriate admissions program." For the reasons set out below, we do not agree. *270 It is by now well established that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Constructors, This "`standard of review. is not dependent on the of those burdened or benefited by a particular classification.' " ). Thus, "any person, of whatever has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny." 515 U. S., at To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of in its current admissions program employs "narrowly tailored measures that further compelling governmental interests." Because "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," our review of whether such requirements have been met must entail "`a most searching examination.' " ). We find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program. In Justice Powell reiterated that "[p]referring members of any one group for no reason other than or ethnic origin is discrimination for its own sake." He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which " or ethnic background may be *271 deemed a `plus' in a particular applicant's file." He explained that such a program might allow for "[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." Such a system, in Justice Powell's view, would be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant." Justice Powell's opinion in emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See See also Metro Broadcasting, (concluding that the Federal Communications Commission's policy, which "embodie[d] the related notions that a particular applicant, by virtue of or ethnicity alone, is more valued than other applicants because [the applicant is] `likely to provide [a] distinct perspective,'" "impermissibly value[d] individuals" based on a presumption that "persons think in a manner associated with their "). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application. The current LSA policy does not provide such individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the University. The only consideration that accompanies this distribution of *272 points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the of a "particular black applicant" could be considered without being decisive, see 438 U. S., the LSA's automatic distribution of 20 points has the effect of making "the factor of decisive" for virtually every minimally qualified underrepresented minority applicant. [19] Also instructive in our consideration of the LSA's system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in The example was included to "illustrate the kind of significance attached to " under the Harvard College program. It provided as follows: "The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently-abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent * upon but sometimes associated with it." This example further demonstrates the problematic nature of the LSA's admissions system. Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA's system. See App. 234-235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants the individualized selection process described in Harvard's example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his "extraordinary talent."[20] Respondents emphasize the fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant "with promise of superior academic performance," would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the University *274 would never consider student A's individual background, experiences, and characteristics to assess his individual "potential contribution to diversity," Instead, every applicant like student A would simply be admitted. It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the "review committee can look at the applications individually and ignore the points," once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA's admissions program. See App. to Pet. for Cert. 117a ("The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG").[21] Additionally, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes a decisive factor for virtually every minimally qualified underrepresented minority applicant. *275 Respondents contend that "[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the admissions system" upheld by the Court today in Grutter. Brief for Respondent Bollinger et al. 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson (rejecting "`administrative convenience' " as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell's opinion in signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis. We conclude, therefore, that because the University's use of in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.[22] We further find that the admissions policy also violates Title VI and *276 42 U.S. C. 1981.[23] Accordingly, we reverse that portion of the District Court's decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion. It is so ordered.

Justice Kennedy

dissenting

Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.

https://www.courtlistener.com/opinion/112769/wisconsin-dept-of-revenue-v-william-wrigley-jr-co/

https://www.courtlistener.com/api/rest/v3/clusters/112769/

1991-100

Congress prohibits the States from imposing taxes on income derived from "business activities" in interstate commerce and limited to the "solicitation of orders" under certain conditions. 15 U.S. C. § 381(a). The question we face is whether Wrigley has this important tax immunity for its business activities in the State of Wisconsin. I agree with the Court that the statutory phrase "solicitation of orders" is but a subset of the phrase "business activities." Ibid.; ante, at 225-226. I submit with all respect, though, that the Court does not allow its own analysis to take the proper course. The Court instead devises a test that excludes business activities with a close relation to the solicitation of orders, activities that advance the purpose of the statute and its immunity. The Court is correct, in my view, to reject the two polar arguments urged upon us: one, that ordinary and necessary business activities surrounding the solicitation of orders are *237 part of the exempt solicitation itself; and the other, that the only exempt activities are those essential to the sale. Ante, at 225, 227. Having done so, however, the Court exits a promising avenue of analysis and adopts a test with little relation to the practicalities of solicitation. The Court's rule will yield results most difficult to justify or explain. My submission is that the two polarities suggest the proper analysis and that the controlling standard lies between. It is difficult to formulate a complete test in one case, but the general rule ought to be that the statute exempts business activities performed in connection with solicitation if reasonable buyers would consider them to be a part of the solicitation itself and not a significant and independent service or component of value. I begin with the statute. Section 381(a) provides as follows: "No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following: "(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and "(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1)." 15 U.S. C. § 381(a). *238 The key phrases, as recognized by the Court, are "business activities" and "solicitation of orders." Ante, at 225-226. By using "solicitation of orders" to define a subset of "business activities," the text suggests that the immunity to be conferred encompasses more than a specific request for a purchase; it includes the process of solicitation, as distinguished from manufacturing, warehousing, or distribution. Congress could have written § 381(a) to exempt "acts" of "solicitation" or "solicitation of orders," but it did not. The decision to use the phrase "business activities," while not unambiguous, suggests that the statute must be read to accord with the practical realities of interstate sales solicitations, which, after all, Congress acted to protect. The textual implication I find draws support from legal and historical context. Even those who approach legislative history with much trepidation must acknowledge that the statute was a response to three specific court decisions: Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959), International Shoe Co. v. Fontenot, 236 La. 279, 107 So. 2d 640 (1958), cert. denied, 359 U.S. 984 (1959), and Brown-Forman Distillers Corp. v. Collector of Revenue, 234 La. 651, 101 So. 2d 70 (1958), appeal dism'd, 359 U.S. 28 (1959). S. Rep. No. 658, 86th Cong., 1st Sess., 2-3 (1959) (hereinafter S. Rep.); H. R. Rep. No. 936, 86th Cong., 1st Sess., 1-2 (1959) (hereinafter H. R. Rep.). See ante, at 220— 223, and n. 1. These decisions departed from what had been perceived as a well-settled rule, stated in Norton Co. v. Department of Revenue of Ill., 340 U.S. 534 (1951), that solicitation in interstate commerce was protected from taxation in the State where the solicitation took place. "Where a corporation chooses to stay at home in all respects except to send abroad advertising or drummers to solicit orders which are sent directly to the home office for acceptance, filling, and delivery back to the buyer, it is obvious that the State of the buyer has no local grip on the seller. Unless some local incident occurs *239 sufficient to bring the transaction within its taxing power, the vendor is not taxable." Id., at 537. Firm expectations within the business community were built upon the rule as restated in Norton. Companies engaging in interstate commerce conformed their activities to the limits our cases seemed to have endorsed. To be sure, the decision to stay at home might have derived in some respects from independent business concerns. The expense and commitment of an in-state sales office, for example, might have informed a decision to send salesmen into a State without further staff support. Some interstate operations, though, carried the unmistakable mark of a legal, rather than business, justification. The technical requirement that orders be approved at the home office, unless approval required judgment or expertise (for example, if the order depended on an ancillary decision to give credit or to name an official retailer), was no doubt the product of the legal rule. These settled expectations were upset in 1959, their continuing vitality put in doubt by Northwestern States, International Shoe, and Brown-Forman. In Northwestern States, the Court upheld state income taxation against two companies whose in-state operations included a sales staff and sales office. 358 U.S., at 454-455. Our disposition was consistent with prior law, since both companies maintained offices within the taxing State. Ibid. But the Court's opinion was broader than the holding itself and marked a departure from prior law. "We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same." Id., at 452. In the absence of case law giving meaning to "sufficient nexus," the Court's use of this indeterminate phrase created *240 concern and apprehension in the business community. S. Rep., at 2-4; H. R. Rep., at 1. Apprehension increased after our denial of certiorari in International Shoe and Brown-Forman, where the Louisiana Supreme Court upheld the taxation of companies whose business activities within the State were limited to solicitation by salespeople. S. Rep., at 3; H. R. Rep., at 2. The concern stemmed not only from the prospect for tax liability in an increasing number of States, but also from the uncertainty of its amount and apportionment, the burdens of compliance, a lack of uniformity under state law, the withdrawal of small businesses from States where the cost and complexity of compliance would be great, and the extent of liability for back taxes. S. Rep., at 2-4. As first drafted by the Senate Finance Committee, § 381(a) would have addressed the decisions in Northwestern States, International Shoe, and Brown-Forman. S. Rep., at 2-3; H. R. Rep., at 3; 105 Cong. Rec. 16378, 16934 (1959). The Committee recommended a bill defining "business activities" in three subsections, with one subsection corresponding to the facts in each of the three cases. S. 2524, 86th Cong., 1st Sess. (1959). Before the bill was enacted, however, the Senate rejected the third of these subsections, corresponding to Northwestern States, which would have extended protection to companies with in-state sales offices. 105 Cong. Rec. 16469-16477 (1959) (Senate debate on an amendment proposed by Sen. Talmadge (Ga.)). But the other two subsections, those dealing with the state-court decisions in International Shoe and Brown-Forman, were retained. 105 Cong. Rec., at 16367, 16376, 16471, 16934; H. R. Rep., at 3. Thus, while Northwestern States provided the first impetus for the enactment of § 381(a), it does not explain the statute in its final form. By contrast, the history of enactment makes clear that § 381(a) exempts from state income taxation at least those business activities at issue in International *241 Shoe and Brown-Forman. These cases must inform any attempt to give meaning to § 381(a). International Shoe manufactured shoes in St. Louis, Missouri. Its only activity within the State of Louisiana consisted of regular and systematic solicitation by 15 salespeople. No office or warehouse was maintained inside Louisiana, and orders were accepted and shipped from outside the State. The salespeople carried product samples, drove in company-owned automobiles, and rented hotel rooms or rooms of public buildings in order to make displays. International Shoe, 236 La., at 280, 107 So. 2d, at 640; Hartman, "Solicitation" and "Delivery" Under Public Law 86-272: An Uncharted Course, 29 Vand. L. Rev. 353, 358 (1976). Brown-Forman distilled and packaged whiskey in Louisville, Kentucky, for sale in Louisiana and elsewhere. Itsolicited orders in Louisiana with the assistance of an in-state sales staff. All orders were approved and shipped from outside the State. There was no in-state office of any kind. Brown-Forman salespeople performed two functions: they solicited orders from wholesalers, who were direct customers of Brown-Forman; and they accompanied the wholesalers' own sales force on visits to retailers, who were solicited by the wholesalers. The Brown-Forman salespeople did not solicit orders at all when visiting retailers, nor could they sell direct to them. They did assist in arranging suitable displays of the distiller's merchandise in the retail establishments. Brown-Forman, 234 La., at 653-654, 101 So. 2d, at 70. The activities in International Shoe and Brown-Forman extended beyond specific acts of entreaty; they included merchandising and display, as well as other simple acts of courtesy from buyer to seller, such as arranging product displays and calling on the customer of a customer. The activities considered in International Shoe and Brown-Forman are by no means exceptional. Checking inventories, displaying products, replacing stale product, and verifying credit are all *242 normal acts of courtesy from seller to buyer. J. Hellerstein, 1 State Taxation: Corporate Income and Franchise Taxes ¶ 6.11[2], p. 245 (1983). A salesperson cannot solicit orders with any degree of effectiveness if he is constrained from performing small acts of courtesy. Note, State Taxation of Interstate Commerce: Public Law 86-272, 46 Va. L. Rev. 297, 315 (1960). The business activities of Wrigley within Wisconsin have substantial parallels to those considered in International Shoe and Brown-Forman. Wrigley has no manufacturing facility in the State. It maintains no offices or warehouses there. The only product it owns in the State is the small amount necessary for its salespeople to call upon their accounts. All orders solicited by its salespeople are approved or rejected outside of the State. All orders are shipped from outside of the State. Other activities, such as intervening in credit disputes, hiring salespeople, or holding sales meetings in hotel rooms, do not exceed the scope of § 381(a); I agree with the Court that these too are the business activities of solicitation. Ante, at 234-235; App. 10-13. The Department of Revenue, in an apparent concession of the point, does not contend that the business activities of Wrigley exceed the normal scope of solicitation; instead the Department relies on a distinction between business activities undertaken before and after the sale. Brief for Petitioner 18, 21. Under the Department's submission, acts leading to the sale are within the statutory safe harbor, while any act following the sale is beyond it. Ibid. I agree with the Court, as well as with the Supreme Court of Wisconsin, that this distinction is unworkable in the context of a continuing business relation with many repeat sales. Ante, at 230-231; App. to Pet. for Cert. A-41. As the Court indicates, the case really turns upon our assessment of two practices: replacing stale product and providing gum in display racks. Ante, at 233. If the retailers relied on the Wrigley sales force to replace all stale product *243 and that service was itself significant, say on the magnitude of routine deliveries of fresh bread, then a separate service would seem to be involved. But my understanding of the record is that replacement of stale gum took place only during the course of regular solicitation. App. 27-28, 41, 58, 117-118. There was no contract to perform this service. There is no indication in the record that this was the only method dealers relied upon to remove stale product. It is not plausible to believe that by enacting § 381(a) Congress insisted that every sales representative in every industry would be prohibited from doing just what Wrigley did. Acceptance of the stale gum replacement does not allow industry practices to replace objective statutory inquiry. The existence of a contract to perform this service, or an indication in the record that this service provided an independent component of significant value, would alter the case's disposition, regardless of the seller's intentions. The test I propose does not depend on the sellers' intentions or motives whatsoever; rather it requires an objective assessment from the vantage point of a reasonable buyer. If a reasonable buyer would consider the replacement of stale gum to provide significant independent value, then this service would subject Wrigley to taxation. The majority appears to concede the point in part when it observes Wrigley replaced stale gum free of charge, ante, at 234, n. 9, which 9, stale provides a strong indication that the replacement of gum is valuable to Wrigley, not its customers, as an assurance of quality given in the course of an ongoing solicitation. I agree with the Court's approach, which is to provide guidance by some general rule that is faithful to the precise language of the statute. But it ought not to do so without recognition of some of the most essential aspects of solicitation techniques. No responsible company would expect its sales force to decline giving minimal assistance to a retailer in replacing damaged or stale product. In enacting § 381(a), Congress recognized the importance of interstate solicitation *244 to the strength of our national economy. The statute must not to be interpreted to repeal the rules of good sales techniques or to forbid common solicitation practices under the threat of forfeiting this important tax exemption. Congress acted to protect interstate solicitation, not to mandate inefficiency. Even accepting the majority's test on its own terms, the business activities which the Court finds to be within the safe harbor of the federal statute are less ancillary to a real sales solicitation than are the activities it condemns. The credit adjustment techniques and the training sessions the Court approves are not related to a particular sales call or to a particular sales solicitation, but the condemned display and replacement practices are. I do not understand why the Court thinks that a credit dispute over an old transaction, handled by telephone weeks or months later is exempt because it "ingratiate[s] the salesman with the customer, thereby facilitating requests for purchases," ante, at 235, but that this same process of ingratiation does not occur when a salesperson who is on the spot to solicit an order refuses to harm the company by leaving the customer with bad product on the shelf. If there were any distinction between the two, I should think we would approve the replacement and condemn the credit adjustment. The majority fails to address this anomaly under its test, responding instead that my observation of it suggests ambiguity in my own. Ante, at 229, n. 5. In my view, both the gum replacement and credit adjustment are within the scope of solicitation. I would agree with the Court that the furnishing of racks with gum that is sold to the customer presents a problem of a different order, ante, at 233, but here too I think it adds no independent value apart from the solicitation itself. To begin with, I think it rather well accepted that the setting up of display racks and the giving of advice on sales presentation is central to the salesperson's role in cultivating customers. There are dangers for the manufacturer, however, *245 if the salesperson spends the time to set up a display and then stocks it with free goods, because this could create either the fact or the perception that retailers were not receiving the same price. Free goods lower the per unit cost of all goods purchased. The simplest policy to avoid this problem is to charge for the goods displayed, and that is what occurred here. Moreover, I cannot ignore, as the Court appears to do, that a minuscule amount of gum, no more than 0.00007% (seven one-hundred thousands of one percent) of Wrigley's in-state sales, was stocked into display racks in this fashion. Brief for Respondent 5; App. to Pet. for Cert. A-43. Indeed, the testimony is that Wrigley salespeople would stock these display racks out of their own supply of samples only as a matter of last resort, in instances where the retailer possessed an inadequate supply of gum and could not await delivery in the normal course. "Q Well, I take it that if you put in the stand and it was a new stand, you took the gum out of your vehicle and transferred it to him there; is that correct? "A No, I would not say that's correct. "Q Well, did you ever stock new stands from your vehicle? "A I would say possibly on some—on a few occasions. "Q And how many few occasions were there during your tenure as a field representative in 1978? "A Boy. I would just be guessing. Maybe a dozen times. "Q And just what would—what all happened in that circumstance that you wound up putting in a new stand and taking the gum out of your vehicle and transferring it to the retailer? "A Well, like I said, primarily I wanted to get a stand in and then he wanted to get that order through his wholesaler; but if he couldn't wait, if he said my wholesaler was just in yesterday or something or he was not going to be in for a week, he didn't want a stand *246 sitting around, so we would then fill it and then bill the wholesaler. . . ." App. 37-38. Under the circumstances described here, I fail to see why the stocking of a gum display does not "ingratiate the salesman with the customer, thereby facilitating requests for purchases," ante, at 235, as is required under the rule formulated by the Court. The small amount of gum involved in stocking a display rack, no more than $15—$20 worth, belies any speculation, ante, at 234, n. 9, that Wrigley was driven by a profit motive in charging customers for this gum. App. 38. The Court pursues a laudable effort to state a workable rule, but in the attempt condemns business activities that are bound to solicitation and do not possess independent value to the customer apart from what often accompanies a successful solicitation. The business activities of Wrigley in Wisconsin, just as those considered in International Shoe and Brown-Forman, are the solicitation of orders. The swapping of stale gum and the infrequent stocking of fresh gum into new displays are not services that Wrigley was under contract to perform; they are not activities that can be said to have provided their own component of significant value; rather they are activities conducted in the course of solicitation and whose legal effect should be the same. My examination of the language of the statute, considered in the context of its enactment, demonstrates that the concerns to which § 381(a) was directed, and for which its language was drafted, are misapprehended by the Court's decision today. I would affirm the judgment of the Wisconsin Supreme Court.

Congress prohibits the States from imposing taxes on income derived from "business activities" in interstate commerce and limited to the "solicitation of orders" under certain conditions. 15 U.S. C. 381(a). The question we face is whether Wrigley has this important tax immunity for its business activities in the State of Wisconsin. I agree with the Court that the statutory phrase "solicitation of orders" is but a subset of the phrase "business activities." ; ante, at 225-226. I submit with all respect, though, that the Court does not allow its own analysis to take the proper course. The Court instead devises a test that excludes business activities with a close relation to the solicitation of orders, activities that advance the purpose of the statute and its immunity. The Court is correct, in my view, to reject the two polar arguments urged upon us: one, that ordinary and necessary business activities surrounding the solicitation of orders are *237 part of the exempt solicitation itself; and the other, that the only exempt activities are those essential to the sale. Ante, at 225, 227. Having done so, however, the Court exits a promising avenue of analysis and adopts a test with little relation to the practicalities of solicitation. The Court's rule will yield results most difficult to justify or explain. My submission is that the two polarities suggest the proper analysis and that the controlling standard lies between. It is difficult to formulate a complete test in one case, but the general rule ought to be that the statute exempts business activities performed in connection with solicitation if reasonable buyers would consider them to be a part of the solicitation itself and not a significant and independent service or component of value. I begin with the statute. Section 381(a) provides as follows: "No State, or political subdivision thereof, shall have power to impose, for any taxable year ending after September 14, 1959, a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following: "(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and "(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1)." 15 U.S. C. 381(a). *238 The key phrases, as recognized by the Court, are "business activities" and "solicitation of orders." Ante, at 225-226. By using "solicitation of orders" to define a subset of "business activities," the text suggests that the immunity to be conferred encompasses more than a specific request for a purchase; it includes the process of solicitation, as distinguished from manufacturing, warehousing, or distribution. Congress could have written 381(a) to exempt "acts" of "solicitation" or "solicitation of orders," but it did not. The decision to use the phrase "business activities," while not unambiguous, suggests that the statute must be read to accord with the practical realities of interstate sales solicitations, which, after all, Congress acted to protect. The textual implication I find draws support from legal and historical context. Even those who approach legislative history with much trepidation must acknowledge that the statute was a response to three specific court decisions: Northwestern States Portland Cement Shoe cert. denied, and Brown-Forman Distillers appeal dism'd, S. Rep. No. 658, 86th Cong., 1st Sess., 2-3 (hereinafter S. Rep.); H. R. Rep. No. 936, 86th Cong., 1st Sess., 1-2 (hereinafter H. R. Rep.). See ante, at 220— 223, and n. 1. These decisions departed from what had been perceived as a well-settled rule, stated in Norton that solicitation in interstate commerce was protected from taxation in the State where the solicitation took place. "Where a corporation chooses to stay at home in all respects except to send abroad advertising or drummers to solicit orders which are sent directly to the home office for acceptance, filling, and delivery back to the buyer, it is obvious that the State of the buyer has no local grip on the seller. Unless some local incident occurs *239 sufficient to bring the transaction within its taxing power, the vendor is not taxable." Firm expectations within the business community were built upon the rule as restated in Norton. Companies engaging in interstate commerce conformed their activities to the limits our cases seemed to have endorsed. To be sure, the decision to stay at home might have derived in some respects from independent business concerns. The expense and commitment of an in-state sales office, for example, might have informed a decision to send salesmen into a State without further staff support. Some interstate operations, though, carried the unmistakable mark of a legal, rather than business, justification. The technical requirement that orders be approved at the home office, unless approval required judgment or expertise (for example, if the order depended on an ancillary decision to give credit or to name an official retailer), was no doubt the product of the legal rule. These settled expectations were upset in 1959, their continuing vitality put in doubt by Northwestern States, Shoe, and Brown-Forman. In Northwestern States, the Court upheld state income taxation against two companies whose in-state operations included a sales staff and sales -455. Our disposition was consistent with prior law, since both companies maintained offices within the taxing State. But the Court's opinion was broader than the holding itself and marked a departure from prior law. "We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same." In the absence of case law giving meaning to "sufficient nexus," the Court's use of this indeterminate phrase created *240 concern and apprehension in the business community. S. Rep., at 2-4; H. R. Rep., at 1. Apprehension increased after our denial of certiorari in Shoe and Brown-Forman, where the Louisiana Supreme Court upheld the taxation of companies whose business activities within the State were limited to solicitation by salespeople. S. Rep., at 3; H. R. Rep., at 2. The concern stemmed not only from the prospect for tax liability in an increasing number of States, but also from the uncertainty of its amount and apportionment, the burdens of compliance, a lack of uniformity under state law, the withdrawal of small businesses from States where the cost and complexity of compliance would be great, and the extent of liability for back taxes. S. Rep., at 2-4. As first drafted by the Senate Finance Committee, 381(a) would have addressed the decisions in Northwestern States, Shoe, and Brown-Forman. S. Rep., at 2-3; H. R. Rep., at 3; 105 Cong. Rec. 16378, 16934 The Committee recommended a bill defining "business activities" in three subsections, with one subsection corresponding to the facts in each of the three cases. S. 2524, 86th Cong., 1st Sess. Before the bill was enacted, however, the Senate rejected the third of these subsections, corresponding to Northwestern States, which would have extended protection to companies with in-state sales offices. 105 Cong. Rec. 16469-16477 (Senate debate on an amendment proposed by Sen. Talmadge (Ga.)). But the other two subsections, those dealing with the state-court decisions in Shoe and Brown-Forman, were retained. 105 Cong. Rec., at 16367, 16376, 16471, 16934; H. R. Rep., at 3. Thus, while Northwestern States provided the first impetus for the enactment of 381(a), it does not explain the statute in its final form. By contrast, the history of enactment makes clear that 381(a) exempts from state income taxation at least those business activities at issue in *241 Shoe and Brown-Forman. These cases must inform any attempt to give meaning to 381(a). Shoe manufactured shoes in St. Louis, Missouri. Its only activity within the State of Louisiana consisted of regular and systematic solicitation by 15 salespeople. No office or warehouse was maintained inside Louisiana, and orders were accepted and shipped from outside the State. The salespeople carried product samples, drove in company-owned automobiles, and rented hotel rooms or rooms of public buildings in order to make displays. Shoe, ; Hartman, "Solicitation" and "Delivery" Under : An Uncharted Course, Brown-Forman distilled and packaged whiskey in Louisville, Kentucky, for sale in Louisiana and elsewhere. Itsolicited orders in Louisiana with the assistance of an in-state sales staff. All orders were approved and shipped from outside the State. There was no in-state office of any kind. Brown-Forman salespeople performed two functions: they solicited orders from wholesalers, who were direct customers of Brown-Forman; and they accompanied the wholesalers' own sales force on visits to retailers, who were solicited by the wholesalers. The Brown-Forman salespeople did not solicit orders at all when visiting retailers, nor could they sell direct to them. They did assist in arranging suitable displays of the distiller's merchandise in the retail establishments. Brown-Forman, The activities in Shoe and Brown-Forman extended beyond specific acts of entreaty; they included merchandising and display, as well as other simple acts of courtesy from buyer to seller, such as arranging product displays and calling on the customer of a customer. The activities considered in Shoe and Brown-Forman are by no means exceptional. Checking inventories, displaying products, replacing stale product, and verifying credit are all *242 normal acts of courtesy from seller to buyer. J. Hellerstein, 1 State Taxation: Corporate Income and Franchise Taxes ¶ 6.11[2], p. 245 (1983). A salesperson cannot solicit orders with any degree of effectiveness if he is constrained from performing small acts of courtesy. Note, State Taxation of Interstate Commerce: 46 Va. L. Rev. 297, 315 (1960). The business activities of Wrigley within Wisconsin have substantial parallels to those considered in Shoe and Brown-Forman. Wrigley has no manufacturing facility in the State. It maintains no offices or warehouses there. The only product it owns in the State is the small amount necessary for its salespeople to call upon their accounts. All orders solicited by its salespeople are approved or rejected outside of the State. All orders are shipped from outside of the State. Other activities, such as intervening in credit disputes, hiring salespeople, or holding sales meetings in hotel rooms, do not exceed the scope of 381(a); I agree with the Court that these too are the business activities of solicitation. Ante, at 234-235; App. 10-13. The Department of Revenue, in an apparent concession of the point, does not contend that the business activities of Wrigley exceed the normal scope of solicitation; instead the Department relies on a distinction between business activities undertaken before and after the sale. Brief for Petitioner 18, 21. Under the Department's submission, acts leading to the sale are within the statutory safe harbor, while any act following the sale is beyond it. I agree with the Court, as well as with the Supreme Court of Wisconsin, that this distinction is unworkable in the context of a continuing business relation with many repeat sales. Ante, at 230-231; App. to Pet. for Cert. A-41. As the Court indicates, the case really turns upon our assessment of two practices: replacing stale product and providing gum in display racks. Ante, at 233. If the retailers relied on the Wrigley sales force to replace all stale product *243 and that service was itself significant, say on the magnitude of routine deliveries of fresh bread, then a separate service would seem to be involved. But my understanding of the record is that replacement of stale gum took place only during the course of regular solicitation. App. 27-28, 41, 58, 117-118. There was no contract to perform this service. There is no indication in the record that this was the only method dealers relied upon to remove stale product. It is not plausible to believe that by enacting 381(a) Congress insisted that every sales representative in every industry would be prohibited from doing just what Wrigley did. Acceptance of the stale gum replacement does not allow industry practices to replace objective statutory inquiry. The existence of a contract to perform this service, or an indication in the record that this service provided an independent component of significant value, would alter the case's disposition, regardless of the seller's intentions. The test I propose does not depend on the sellers' intentions or motives whatsoever; rather it requires an objective assessment from the vantage point of a reasonable buyer. If a reasonable buyer would consider the replacement of stale gum to provide significant independent value, then this service would subject Wrigley to taxation. The majority appears to concede the point in part when it observes Wrigley replaced stale gum free of charge, ante, at 234, n. 9, which 9, stale provides a strong indication that the replacement of gum is valuable to Wrigley, not its customers, as an assurance of quality given in the course of an ongoing solicitation. I agree with the Court's approach, which is to provide guidance by some general rule that is faithful to the precise language of the statute. But it ought not to do so without recognition of some of the most essential aspects of solicitation techniques. No responsible company would expect its sales force to decline giving minimal assistance to a retailer in replacing damaged or stale product. In enacting 381(a), Congress recognized the importance of interstate solicitation *244 to the strength of our national economy. The statute must not to be interpreted to repeal the rules of good sales techniques or to forbid common solicitation practices under the threat of forfeiting this important tax exemption. Congress acted to protect interstate solicitation, not to mandate inefficiency. Even accepting the majority's test on its own terms, the business activities which the Court finds to be within the safe harbor of the federal statute are less ancillary to a real sales solicitation than are the activities it condemns. The credit adjustment techniques and the training sessions the Court approves are not related to a particular sales call or to a particular sales solicitation, but the condemned display and replacement practices are. I do not understand why the Court thinks that a credit dispute over an old transaction, handled by telephone weeks or months later is exempt because it "ingratiate[s] the salesman with the customer, thereby facilitating requests for purchases," ante, at 235, but that this same process of ingratiation does not occur when a salesperson who is on the spot to solicit an order refuses to harm the company by leaving the customer with bad product on the shelf. If there were any distinction between the two, I should think we would approve the replacement and condemn the credit adjustment. The majority fails to address this anomaly under its test, responding instead that my observation of it suggests ambiguity in my own. Ante, at 229, n. 5. In my view, both the gum replacement and credit adjustment are within the scope of solicitation. I would agree with the Court that the furnishing of racks with gum that is sold to the customer presents a problem of a different order, ante, at 233, but here too I think it adds no independent value apart from the solicitation itself. To begin with, I think it rather well accepted that the setting up of display racks and the giving of advice on sales presentation is central to the salesperson's role in cultivating customers. There are dangers for the manufacturer, however, *245 if the salesperson spends the time to set up a display and then stocks it with free goods, because this could create either the fact or the perception that retailers were not receiving the same price. Free goods lower the per unit cost of all goods purchased. The simplest policy to avoid this problem is to charge for the goods displayed, and that is what occurred here. Moreover, I cannot ignore, as the Court appears to do, that a minuscule amount of gum, no more than 0.00007% (seven one-hundred thousands of one percent) of Wrigley's in-state sales, was stocked into display racks in this fashion. Brief for Respondent 5; App. to Pet. for Cert. A-43. Indeed, the testimony is that Wrigley salespeople would stock these display racks out of their own supply of samples only as a matter of last resort, in instances where the retailer possessed an inadequate supply of gum and could not await delivery in the normal course. "Q Well, I take it that if you put in the stand and it was a new stand, you took the gum out of your vehicle and transferred it to him there; is that correct? "A No, I would not say that's correct. "Q Well, did you ever stock new stands from your vehicle? "A I would say possibly on some—on a few occasions. "Q And how many few occasions were there during your tenure as a field representative in 1978? "A Boy. I would just be guessing. Maybe a dozen times. "Q And just what would—what all happened in that circumstance that you wound up putting in a new stand and taking the gum out of your vehicle and transferring it to the retailer? "A Well, like I said, primarily I wanted to get a stand in and then he wanted to get that order through his wholesaler; but if he couldn't wait, if he said my wholesaler was just in yesterday or something or he was not going to be in for a week, he didn't want a stand *246 sitting around, so we would then fill it and then bill the wholesaler." App. 37-38. Under the circumstances described here, I fail to see why the stocking of a gum display does not "ingratiate the salesman with the customer, thereby facilitating requests for purchases," ante, at 235, as is required under the rule formulated by the Court. The small amount of gum involved in stocking a display rack, no more than $15—$20 worth, belies any speculation, ante, at 234, n. 9, that Wrigley was driven by a profit motive in charging customers for this gum. App. 38. The Court pursues a laudable effort to state a workable rule, but in the attempt condemns business activities that are bound to solicitation and do not possess independent value to the customer apart from what often accompanies a successful solicitation. The business activities of Wrigley in Wisconsin, just as those considered in Shoe and Brown-Forman, are the solicitation of orders. The swapping of stale gum and the infrequent stocking of fresh gum into new displays are not services that Wrigley was under contract to perform; they are not activities that can be said to have provided their own component of significant value; rather they are activities conducted in the course of solicitation and whose legal effect should be the same. My examination of the language of the statute, considered in the context of its enactment, demonstrates that the concerns to which 381(a) was directed, and for which its language was drafted, are misapprehended by the Court's decision today. I would affirm the judgment of the Wisconsin Supreme Court.

Justice Kennedy

majority

Mitchell v. United States

https://www.courtlistener.com/opinion/118278/mitchell-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118278/

1998-044

Two questions relating to a criminal defendant's Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts *317 about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant's silence. We hold a sentencing court may not draw the adverse inference. I Petitioner Amanda Mitchell and 22 other defendants were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown, Pennsylvania, from 1989 to 1994. According to the indictment, the leader of the conspiracy, Harry Riddick, obtained large quantities of cocaine and resold the drug through couriers and street sellers, including petitioner. Petitioner was charged with one count of conspiring to distribute five or more kilograms of cocaine, in violation of 21 U.S. C. § 846, and with three counts of distributing cocaine within 1,000 feet of a school or playground, in violation of § 860(a). In 1995, without any plea agreement, petitioner pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing. Before accepting the plea, the District Court made the inquiries required by Rule 11 of the Federal Rules of Criminal Procedure. Informing petitioner of the penalties for her offenses, the District Judge advised her, "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in." App. 39. The judge told petitioner she faced a mandatory minimum of one year in prison under § 860 for distributing cocaine near a school or playground. She also faced "serious punishment depending on the quantity involved" for the conspiracy, with a mandatory minimum of 10 years in prison under § 841 if she could be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine. Id., at 42. By pleading guilty, the District Court explained, *318 petitioner would waive various rights, including "the right at trial to remain silent under the Fifth Amendment." Id., at 45. After the Government explained the factual basis for the charges, the judge, having put petitioner under oath, asked her, "Did you do that?" Petitioner answered, "Some of it." Id., at 47. She indicated that, although present for one of the transactions charged as a substantive cocaine distribution count, she had not herself delivered the cocaine to the customer. The Government maintained she was liable nevertheless as an aider and abettor of the delivery by another courier. After discussion with her counsel, petitioner reaffirmed her intention to plead guilty to all the charges. The District Court noted she might have a defense to one count on the theory that she was present but did not aid or abet the transaction. Petitioner again confirmed her intention to plead guilty, and the District Court accepted the plea. In 1996, 9 of petitioner's original 22 codefendants went to trial. Three other codefendants had pleaded guilty and agreed to cooperate with the Government. They testified petitioner was a regular seller for ringleader Riddick. At petitioner's sentencing hearing, the three adopted their trial testimony, and one of them furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling 1½ to 2 ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. On cross-examination, the codefendant conceded he had not seen petitioner on a regular basis during the relevant period. Both petitioner and the Government referred to trial testimony by one Alvitta Mack, who had made a series of drug buys under the supervision of law enforcement agents, including three purchases from petitioner totaling two ounces *319 of cocaine in 1992. Petitioner put on no evidence at sentencing, nor did she testify to rebut the Government's evidence about drug quantity. Her counsel argued, however, that the three documented sales to Mack constituted the only evidence of sufficient reliability to be credited in determining the quantity of cocaine attributable to her for sentencing purposes. After this testimony at the sentencing hearing the District Court ruled that, as a consequence of her guilty plea, petitioner had no right to remain silent with respect to the details of her crimes. The court found credible the testimony indicating petitioner had been a drug courier on a regular basis. Sales of 1½ to 2 ounces twice a week for a year and a half put her over the 5-kilogram threshold, thus mandating a minimum sentence of 10 years. "One of the things" persuading the court to rely on the testimony of the codefendants was petitioner's "not testifying to the contrary." Id., at 95. The District Judge told petitioner: "`I held it against you that you didn't come forward today and tell me that you really only did this a couple of times. . . . I'm taking the position that you should come forward and explain your side of this issue. "`Your counsel's taking the position that you have a Fifth Amendment right not to. . . . If he's—if it's determined by a higher Court that he's right in that regard, I would be willing to bring you back for resentencing. And if you—if—and then I might take a closer look at the [codefendants'] testimony.' " Id., at 98-99. The District Court sentenced petitioner to the statutory minimum of 10 years of imprisonment, 6 years of supervised release, and a special assessment of $200. The Court of Appeals for the Third Circuit affirmed the sentence. 122 F.3d 185 (1997). According to the Court of Appeals: "By voluntarily and knowingly pleading guilty to *320 the offense Mitchell waived her Fifth Amendment privilege." Id., at 189. The court acknowledged other Circuits have held a witness can "claim the Fifth Amendment privilege if his or her testimony might be used to enhance his or her sentence," id., at 190 (citing United States v. Garcia, 78 F.3d 1457, 1463, and n. 8 (CA10), cert. denied, 517 U.S. 1239 (1996)), but it said this rule "does not withstand analysis," 122 F.3d, at 191. The court thought it would be illogical to "fragment the sentencing process," retaining the privilege against self-incrimination as to one or more components of the crime while waiving it as to others. Ibid. Petitioner's reservation of the right to contest the amount of drugs attributable to her did not change the court's analysis. In the Court of Appeals' view: "Mitchell opened herself up to the full range of possible sentences for distributing cocaine when she was told during her plea colloquy that the penalty for conspiring to distribute cocaine had a maximum of life imprisonment. While her reservation may have put the government to its proof as to the amount of drugs, her declination to testify on that issue could properly be held against her." Ibid. The court acknowledged a defendant may plead guilty and retain the privilege with respect to other crimes, but it observed: "Mitchell does not claim that she could be implicated in other crimes by testifying at her sentencing hearing, nor could she be retried by the state for the same offense." Ibid. (citing 18 Pa. Cons. Stat. § 111 (1998), a statute that bars, with certain exceptions, a state prosecution following a federal conviction based on the same conduct). Judge Michel concurred, reasoning that any error by the District Court in drawing an adverse factual inference from petitioner's silence was harmless because "the evidence amply supported [the judge's] finding on quantity" even without *321 consideration of petitioner's failure to testify. 122 F.3d, at 192. Other Circuits to have confronted the issue have held that a defendant retains the privilege at sentencing. See, e. g., United States v. Kuku, 129 F.3d 1435, 1437-1438 (CA11 1997); United States v. Garcia, 78 F.3d 1457, 1463 (CA10 1996); United States v. De La Cruz, 996 F.2d 1307, 1312-1313 (CA1 1993); United States v. Hernandez, 962 F.2d 1152, 1161 (CA5 1992); Bank One of Cleveland, N. A. v. Abbe, 916 F.2d 1067, 1075-1076 (CA6 1990); United States v. Lugg, 892 F.2d 101, 102-103 (CADC 1989); United States v. Paris, 827 F.2d 395, 398-399 (CA9 1987). We granted certiorari to resolve the apparent Circuit conflict created by the Court of Appeals' decision, 524 U.S. 925 (1998), and we now reverse. II The Government maintains that petitioner's guilty plea was a waiver of the privilege against compelled selfincrimination with respect to all the crimes comprehended in the plea. We hold otherwise and rule that petitioner retained the privilege at her sentencing hearing. A It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination," Brown v. United States, 356 U.S. 148, 154-155 (1958). "The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry," id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended *322 within its scope, but for now it suffices to note the general rule. The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule "would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony," 340 U.S., at 371. It would, as we said in Brown, "make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell," 356 U.S., at 156. The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing crossexamination when testimony is given without invoking the privilege. We may assume for purposes of this opinion, then, that if petitioner had pleaded not guilty and, having taken the stand at a trial, testified she did "some of it," she could have been cross-examined on the frequency of her drug deliveries and the quantity of cocaine involved. The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled selfincrimination upon entry of a guilty plea, including the right to remain silent at sentencing. There is no convincing reason why the narrow inquiry at the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who "cannot reasonably claim that the Fifth Amendment gives him . . . an immunity from cross-examination on the matters *323 he has himself put in dispute," id., at 155-156, the defendant who pleads guilty puts nothing in dispute regarding the essentials of the offense. Rather, the defendant takes those matters out of dispute, often by making a joint statement with the prosecution or confirming the prosecution's version of the facts. Under these circumstances, there is little danger that the court will be misled by selective disclosure. In this respect a guilty plea is more like an offer to stipulate than a decision to take the stand. Here, petitioner's statement that she had done "some of" the proffered conduct did not pose a threat to the integrity of factfinding proceedings, for the purpose of the District Court's inquiry was simply to ensure that petitioner understood the charges and that there was a factual basis for the Government's case. Nor does Federal Rule of Criminal Procedure 11, which governs pleas, contemplate the broad waiver the Government envisions. Rule 11 directs the district court, before accepting a guilty plea, to ascertain the defendant understands he or she is giving up "the right to be tried by a jury and at that trial . . . the right against compelled selfincrimination." Rule 11(c)(3). The transcript of the plea colloquy in this case discloses that the District Court took care to comply with this and the other provisions of Rule 11. The District Court correctly instructed petitioner: "You have the right at trial to remain silent under the Fifth Amendment, or at your option, you can take the stand and tell the jury your side of this controversy. . . . If you plead guilty, all of those rights are gone." App. 45. Neither the Rule itself nor the District Court's explication of it indicates that the defendant consents to take the stand in the sentencing phase or to suffer adverse consequences from declining to do so. Both the Rule and the District Court's admonition were to the effect that by entry of the plea petitioner would surrender the right "at trial" to invoke the privilege. As there was to be no trial, the warning would not have brought home to petitioner that she was also *324 waiving the right to self-incrimination at sentencing. The purpose of Rule 11 is to inform the defendant of what she loses by forgoing the trial, not to elicit a waiver of the privilege for proceedings still to follow. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial. Of course, a court may discharge its duty of ensuring a factual basis for a plea by "question[ing] the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded." Rule 11(c)(5). We do not question the authority of a district court to make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis. A defendant who withholds information by invoking the privilege against self-incrimination at a plea colloquy runs the risk the district court will find the factual basis inadequate. At least once the plea has been accepted, statements or admissions made during the preceding plea colloquy are later admissible against the defendant, as is the plea itself. A statement admissible against a defendant, however, is not necessarily a waiver of the privilege against self-incrimination. Rule 11 does not prevent the defendant from relying upon the privilege at sentencing. Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants. At oral argument, we asked counsel for the United States whether, on the facts of this case, if the Government had no reliable evidence of the amount of drugs involved, the prosecutor "could say, well, we can't prove it, but we'd like to put her on the stand and cross-examine her and see if we can't get her to admit it." Tr. of Oral Arg. 45. Counsel answered: "[T]he waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that." Ibid. Over 90% of federal criminal defendants *325 whose cases are not dismissed enter pleas of guilty or nolo contendere. U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996, p. 448 (24th ed. 1997). Were we to accept the Government's position, prosecutors could indict without specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the drug quantity. The result would be to enlist the defendant as an instrument in his or her own condemnation, undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. Rogers v. Richmond, 365 U.S. 534, 541 (1961) ("[O]urs is an accusatorial and not an inquisitorial system"). We reject the position that either petitioner's guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing. B The centerpiece of the Third Circuit's opinion is the idea that the entry of the guilty plea completes the incrimination of the defendant, thus extinguishing the privilege. Where a sentence has yet to be imposed, however, this Court has already rejected the proposition that "`incrimination is complete once guilt has been adjudicated,' " Estelle v. Smith, 451 U.S. 454, 462 (1981), and we reject it again today. The Court of Appeals cited Wigmore on Evidence for the proposition that upon conviction "`criminality ceases; and with criminality the privilege.' " 122 F.3d, at 191 (citing 8 J. Wigmore, Evidence § 2279, p. 481 (J. McNaughton rev. 1961)). The passage relied upon does not support the Third Circuit's narrow view of the privilege. The full passage is as follows: "Legal criminality consists in liability to the law's punishment. When that liability is removed, criminality ceases; and with the criminality the privilege." Ibid. It could be argued that liability for punishment continues until *326 sentence has been imposed, and so does the privilege. Even if the Court of Appeals' interpretation of the treatise were correct, however, and it means the privilege ceases upon conviction but before sentencing, we would respond that the suggested rule is simply wrong. A later supplement to the treatise, indeed, states the proper rule that, "[a]lthough the witness has pleaded guilty to a crime charged but has not been sentenced, his constitutional privilege remains unimpaired." J. Wigmore, Evidence § 2279, p. 991, n. 1 (A. Best ed. Supp. 1998). It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final. See, e. g., Reina v. United States, 364 U.S. 507, 513 (1960). If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared. Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." 451 U.S., at 463. Estelle was a capital case, but we find no reason not to apply the principle to noncapital sentencing hearings as well. "The essence of this basic constitutional principle is `the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' " Id., at 462 (emphasis in original) (quoting Culombe v. Connecticut, 367 U.S. 568, 581-582 (1961)). The Government itself makes the implicit concession that the acceptance of a guilty plea does not eliminate the possibility of further incrimination. In its brief to the Court, the Government *327 acknowledges that a defendant who awaits sentencing after having pleaded guilty may assert the privilege against self-incrimination if called as a witness in the trial of a codefendant, in part because of the danger of responding "to questions that might have an adverse impact on his sentence or on his prosecution for other crimes." Brief for United States 31. The Fifth Amendment by its terms prevents a person from being "compelled in any criminal case to be a witness against himself." U. S. Const., Amdt. 5. To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the law and to common sense. As to the law, under the Federal Rules of Criminal Procedure, a court must impose sentence before a judgment of conviction can issue. See Rule 32(d)(1) ("A judgment of conviction must set forth the plea . . . and the sentence"); cf. Mempa v. Rhay, 389 U.S. 128, 134 (1967). As to common sense, it appears that in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment. Petitioner faced imprisonment from one year upwards to life, depending on the circumstances of the crime. To say that she had no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of view, it was most important. Our rule is applicable whether or not the sentencing hearing is deemed a proceeding separate from the Rule 11 hearing, an issue we need not resolve. III The Government suggests in a footnote that even if petitioner retained an unwaived privilege against selfincrimination in the sentencing phase of her case, the District Court was entitled, based on her silence, to draw an adverse inference with regard to the amount of drugs attributable to her. Brief for United States 31-32, n. 18. The *328 normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted. Griffin v. California, 380 U.S. 609, 614 (1965). We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime. This Court has recognized "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them," Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), at least where refusal to waive the privilege does not lead "automatically and without more to [the] imposition of sanctions," Lefkowitz v. Cunningham, 431 U.S. 801, 808, n. 5 (1977). In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that "the stakes are higher" in criminal cases, where liberty or even life may be at stake, and where the government's "sole interest is to convict." Baxter, 425 U. S., at 318-319. Baxter itself involved state prison disciplinary proceedings which, as the Court noted, "are not criminal proceedings" and "involve the correctional process and important state interests other than conviction for crime." Id., at 316, 319. Cf. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) (adverse inference permissible from silence in clemency proceeding, a nonjudicial postconviction process which is not part of the criminal case). Unlike a prison disciplinary proceeding, a sentencing hearing is part of the criminal case—the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth Amendment, we *329 must accord the privilege the same protection in the sentencing phase of "any criminal case" as that which is due in the trial phase of the same case, see Griffin, supra. The concerns which mandate the rule against negative inferences at a criminal trial apply with equal force at sentencing. Without question, the stakes are high: Here, the inference drawn by the District Court from petitioner's silence may have resulted in decades of added imprisonment. The Government often has a motive to demand a severe sentence, so the central purpose of the privilege—to protect a defendant from being the unwilling instrument of his or her own condemnation—remains of vital importance. Our holding today is a product of existing precedent, not only Griffin but also by Estelle v. Smith, in which the Court could "discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned." 451 U.S., at 462-463. Although Estelle was a capital case, its reasoning applies with full force here, where the Government seeks to use petitioner's silence to infer commission of disputed criminal acts. See supra, at 326. To say that an adverse factual inference may be drawn from silence at a sentencing hearing held to determine the specifics of the crime is to confine Griffin by ignoring Estelle. We are unwilling to truncate our precedents in this way. The rule against adverse inferences from a defendant's silence in criminal proceedings, including sentencing, is of proven utility. Some years ago the Court expressed concern that "[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege." Ullmann v. United States, 350 U.S. 422, 426 (1956). Later, it quoted with apparent approval Wigmore's observation that "`[t]he layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confession *330 of crime,' " Lakeside v. Oregon, 435 U.S. 333, 340, n. 10 (1978) (quoting 8 Wigmore, Evidence § 2272, at 426). It is far from clear that citizens, and jurors, remain today so skeptical of the principle or are often willing to ignore the prohibition against adverse inferences from silence. Principles once unsettled can find general and wide acceptance in the legal culture, and there can be little doubt that the rule prohibiting an inference of guilt from a defendant's rightful silence has become an essential feature of our legal tradition. This process began even before Griffin. When Griffin was being considered by this Court, some 44 States did not allow a prosecutor to invite the jury to make an adverse inference from the defendant's refusal to testify at trial. See Griffin, supra, at 611, n. 3. The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights. The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege. Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it. By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled selfincrimination. 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.

Two questions relating to a criminal defendant's Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts *317 about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant's silence. We hold a sentencing court may not draw the adverse inference. I Petitioner Amanda Mitchell and 22 other defendants were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown, Pennsylvania, from to 1994. According to the indictment, the leader of the conspiracy, Harry Riddick, obtained large quantities of cocaine and resold the drug through couriers and street sellers, including petitioner. Petitioner was charged with one count of conspiring to distribute five or more kilograms of cocaine, in violation of 21 U.S. C. 846, and with three counts of distributing cocaine within 1,000 feet of a school or playground, in violation of 860(a). In 1995, without any plea agreement, petitioner pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing. Before accepting the plea, the District Court made the inquiries required by Rule 11 of the Federal Rules of Criminal Procedure. Informing petitioner of the penalties for her offenses, the District Judge advised her, "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in." App. 39. The judge told petitioner she faced a mandatory minimum of one year in prison under 860 for distributing cocaine near a school or playground. She also faced "serious punishment depending on the quantity involved" for the conspiracy, with a mandatory minimum of 10 years in prison under 841 if she could be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine. By pleading guilty, the District Court explained, * petitioner would waive various rights, including "the right at trial to remain silent under the Fifth Amendment." After the Government explained the factual basis for the charges, the judge, having put petitioner under oath, asked her, "Did you do that?" Petitioner answered, "Some of it." She indicated that, although present for one of the transactions charged as a substantive cocaine distribution count, she had not herself delivered the cocaine to the customer. The Government maintained she was liable nevertheless as an aider and abettor of the delivery by another courier. After discussion with her counsel, petitioner reaffirmed her intention to plead guilty to all the charges. The District Court noted she might have a defense to one count on the theory that she was present but did not aid or abet the transaction. Petitioner again confirmed her intention to plead guilty, and the District Court accepted the plea. In 9 of petitioner's original 22 codefendants went to trial. Three other codefendants had pleaded guilty and agreed to cooperate with the Government. They testified petitioner was a regular seller for ringleader Riddick. At petitioner's sentencing hearing, the three adopted their trial testimony, and one of them furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling 1½ to 2 ounces of cocaine a day, from April to August Then, from August to December she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. On cross-examination, the codefendant conceded he had not seen petitioner on a regular basis during the relevant period. Both petitioner and the Government referred to trial testimony by one Alvitta Mack, who had made a series of drug buys under the supervision of law enforcement agents, including three purchases from petitioner totaling two ounces *319 of cocaine in Petitioner put on no evidence at sentencing, nor did she testify to rebut the Government's evidence about drug quantity. Her counsel argued, however, that the three documented sales to Mack constituted the only evidence of sufficient reliability to be credited in determining the quantity of cocaine attributable to her for sentencing purposes. After this testimony at the sentencing hearing the District Court ruled that, as a consequence of her guilty plea, petitioner had no right to remain silent with respect to the details of her crimes. The court found credible the testimony indicating petitioner had been a drug courier on a regular basis. Sales of 1½ to 2 ounces twice a week for a year and a half put her over the 5-kilogram threshold, thus mandating a minimum sentence of 10 years. "One of the things" persuading the court to rely on the testimony of the codefendants was petitioner's "not testifying to the contrary." The District Judge told petitioner: "`I held it against you that you didn't come forward today and tell me that you really only did this a couple of times. I'm taking the position that you should come forward and explain your side of this issue. "`Your counsel's taking the position that you have a Fifth Amendment right not to. If he's—if it's determined by a higher Court that he's right in that regard, I would be willing to bring you back for resentencing. And if you—if—and then I might take a closer look at the [codefendants'] testimony.' " The District Court sentenced petitioner to the statutory minimum of 10 years of imprisonment, 6 years of supervised release, and a special assessment of $200. The Court of Appeals for the Third Circuit affirmed the sentence. According to the Court of Appeals: "By voluntarily and knowingly pleading guilty to *320 the offense Mitchell waived her Fifth Amendment privilege." The court acknowledged other Circuits have held a witness can "claim the Fifth Amendment privilege if his or her testimony might be used to enhance his or her sentence," at 190 (citing United and n. 8 (CA10), cert. denied, ), but it said this rule "does not withstand analysis," The court thought it would be illogical to "fragment the sentencing process," retaining the privilege against self-incrimination as to one or more components of the crime while waiving it as to others. Petitioner's reservation of the right to contest the amount of drugs attributable to her did not change the court's analysis. In the Court of Appeals' view: "Mitchell opened herself up to the full range of possible sentences for distributing cocaine when she was told during her plea colloquy that the penalty for conspiring to distribute cocaine had a maximum of life imprisonment. While her reservation may have put the government to its proof as to the amount of drugs, her declination to testify on that issue could properly be held against her." The court acknowledged a defendant may plead guilty and retain the privilege with respect to other crimes, but it observed: "Mitchell does not claim that she could be implicated in other crimes by testifying at her sentencing hearing, nor could she be retried by the state for the same offense." a statute that bars, with certain exceptions, a state prosecution following a federal conviction based on the same conduct). Judge Michel concurred, reasoning that any error by the District Court in drawing an adverse factual inference from petitioner's silence was harmless because "the evidence amply supported [the judge's] finding on quantity" even without *321 consideration of petitioner's failure to Other Circuits to have confronted the issue have held that a defendant retains the privilege at sentencing. See, e. g., United ; United ; United ; United ; Bank One of Cleveland, N. ; United ; United We granted certiorari to resolve the apparent Circuit conflict created by the Court of Appeals' decision, and we now reverse. II The Government maintains that petitioner's guilty plea was a waiver of the privilege against compelled selfincrimination with respect to all the crimes comprehended in the plea. We hold otherwise and rule that petitioner retained the privilege at her sentencing hearing. A It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination," "The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry," Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended *322 within its scope, but for now it suffices to note the general rule. The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule "would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony," It would, as we said in Brown, "make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell," The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing crossexamination when testimony is given without invoking the privilege. We may assume for purposes of this opinion, then, that if petitioner had pleaded not guilty and, having taken the stand at a trial, testified she did "some of it," she could have been cross-examined on the frequency of her drug deliveries and the quantity of cocaine involved. The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled selfincrimination upon entry of a guilty plea, including the right to remain silent at sentencing. There is no convincing reason why the narrow inquiry at the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who "cannot reasonably claim that the Fifth Amendment gives him an immunity from cross-examination on the matters *323 he has himself put in dispute," -156, the defendant who pleads guilty puts nothing in dispute regarding the essentials of the offense. Rather, the defendant takes those matters out of dispute, often by making a joint statement with the prosecution or confirming the prosecution's version of the facts. Under these circumstances, there is little danger that the court will be misled by selective disclosure. In this respect a guilty plea is more like an offer to stipulate than a decision to take the stand. Here, petitioner's statement that she had done "some of" the proffered conduct did not pose a threat to the integrity of factfinding proceedings, for the purpose of the District Court's inquiry was simply to ensure that petitioner understood the charges and that there was a factual basis for the Government's case. Nor does Federal Rule of Criminal Procedure 11, which governs pleas, contemplate the broad waiver the Government envisions. Rule 11 directs the district court, before accepting a guilty plea, to ascertain the defendant understands he or she is giving up "the right to be tried by a jury and at that trial the right against compelled selfincrimination." Rule 11(c)(3). The transcript of the plea colloquy in this case discloses that the District Court took care to comply with this and the other provisions of Rule 11. The District Court correctly instructed petitioner: "You have the right at trial to remain silent under the Fifth Amendment, or at your option, you can take the stand and tell the jury your side of this controversy. If you plead guilty, all of those rights are gone." App. 45. Neither the Rule itself nor the District Court's explication of it indicates that the defendant consents to take the stand in the sentencing phase or to suffer adverse consequences from declining to do so. Both the Rule and the District Court's admonition were to the effect that by entry of the plea petitioner would surrender the right "at trial" to invoke the privilege. As there was to be no trial, the warning would not have brought home to petitioner that she was also *324 waiving the right to self-incrimination at sentencing. The purpose of Rule 11 is to inform the defendant of what she loses by forgoing the trial, not to elicit a waiver of the privilege for proceedings still to follow. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial. Of course, a court may discharge its duty of ensuring a factual basis for a plea by "question[ing] the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded." Rule 11(c)(5). We do not question the authority of a district court to make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis. A defendant who withholds information by invoking the privilege against self-incrimination at a plea colloquy runs the risk the district court will find the factual basis inadequate. At least once the plea has been accepted, statements or admissions made during the preceding plea colloquy are later admissible against the defendant, as is the plea itself. A statement admissible against a defendant, however, is not necessarily a waiver of the privilege against self-incrimination. Rule 11 does not prevent the defendant from relying upon the privilege at sentencing. Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants. At oral argument, we asked counsel for the United States whether, on the facts of this case, if the Government had no reliable evidence of the amount of drugs involved, the prosecutor "could say, well, we can't prove it, but we'd like to put her on the stand and cross-examine her and see if we can't get her to admit it." Tr. of Oral Arg. 45. Counsel answered: "[T]he waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that." Over 90% of federal criminal defendants *325 whose cases are not dismissed enter pleas of guilty or nolo contendere. U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics p. 448 Were we to accept the Government's position, prosecutors could indict without specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the drug quantity. The result would be to enlist the defendant as an instrument in his or her own condemnation, undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. We reject the position that either petitioner's guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing. B The centerpiece of the Third Circuit's opinion is the idea that the entry of the guilty plea completes the incrimination of the defendant, thus extinguishing the privilege. Where a sentence has yet to be imposed, however, this Court has already rejected the proposition that "`incrimination is complete once guilt has been adjudicated,' " and we reject it again today. The Court of Appeals cited Wigmore on Evidence for the proposition that upon conviction "`criminality ceases; and with criminality the privilege.' " ). The passage relied upon does not support the Third Circuit's narrow view of the privilege. The full passage is as follows: "Legal criminality consists in liability to the law's punishment. When that liability is removed, criminality ceases; and with the criminality the privilege." It could be argued that liability for punishment continues until *326 sentence has been imposed, and so does the privilege. Even if the Court of Appeals' interpretation of the treatise were correct, however, and it means the privilege ceases upon conviction but before sentencing, we would respond that the suggested rule is simply wrong. A later supplement to the treatise, indeed, states the proper rule that, "[a]lthough the witness has pleaded guilty to a crime charged but has not been sentenced, his constitutional privilege remains unimpaired." J. Wigmore, Evidence 2279, p. 991, n. 1 It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final. See, e. g., If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared. Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." Estelle was a capital case, but we find no reason not to apply the principle to noncapital sentencing hearings as well. "The essence of this basic constitutional principle is `the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' " at ). The Government itself makes the implicit concession that the acceptance of a guilty plea does not eliminate the possibility of further incrimination. In its brief to the Court, the Government *327 acknowledges that a defendant who awaits sentencing after having pleaded guilty may assert the privilege against self-incrimination if called as a witness in the trial of a codefendant, in part because of the danger of responding "to questions that might have an adverse impact on his sentence or on his prosecution for other crimes." Brief for United States 31. The Fifth Amendment by its terms prevents a person from being "compelled in any criminal case to be a witness against himself." U. S. Const., Amdt. 5. To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the law and to common sense. As to the law, under the Federal Rules of Criminal Procedure, a court must impose sentence before a judgment of conviction can issue. See Rule 32(d)(1) ("A judgment of conviction must set forth the plea and the sentence"); cf. As to common sense, it appears that in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment. Petitioner faced imprisonment from one year upwards to life, depending on the circumstances of the crime. To say that she had no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of view, it was most important. Our rule is applicable whether or not the sentencing hearing is deemed a proceeding separate from the Rule 11 hearing, an issue we need not resolve. III The Government suggests in a footnote that even if petitioner retained an unwaived privilege against selfincrimination in the sentencing phase of her case, the District Court was entitled, based on her silence, to draw an adverse inference with regard to the amount of drugs attributable to her. Brief for United States 31-32, n. 18. The *328 normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted. We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime. This Court has recognized "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them," at least where refusal to waive the privilege does not lead "automatically and without more to [the] imposition of sanctions," In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that "the stakes are higher" in criminal cases, where liberty or even life may be at stake, and where the government's "sole interest is to convict." Baxter, 425 U. S., at -319. Baxter itself involved state prison disciplinary proceedings which, as the Court noted, "are not criminal proceedings" and "involve the correctional process and important state interests other than conviction for crime." Cf. Ohio Adult Parole Unlike a prison disciplinary proceeding, a sentencing hearing is part of the criminal case—the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth Amendment, we *329 must accord the privilege the same protection in the sentencing phase of "any criminal case" as that which is due in the trial phase of the same case, see The concerns which mandate the rule against negative inferences at a criminal trial apply with equal force at sentencing. Without question, the stakes are high: Here, the inference drawn by the District Court from petitioner's silence may have resulted in decades of added imprisonment. The Government often has a motive to demand a severe sentence, so the central purpose of the privilege—to protect a defendant from being the unwilling instrument of his or her own condemnation—remains of vital importance. Our holding today is a product of existing precedent, not only but also by in which the Court could "discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned." 451 U.S., at -463. Although Estelle was a capital case, its reasoning applies with full force here, where the Government seeks to use petitioner's silence to infer commission of disputed criminal acts. See To say that an adverse factual inference may be drawn from silence at a sentencing hearing held to determine the specifics of the crime is to confine by ignoring Estelle. We are unwilling to truncate our precedents in this way. The rule against adverse inferences from a defendant's silence in criminal proceedings, including sentencing, is of proven utility. Some years ago the Court expressed concern that "[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege." Later, it quoted with apparent approval Wigmore's observation that "`[t]he layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confession *330 of crime,' " (quoting 8 Wigmore, Evidence 2272, 6). It is far from clear that citizens, and jurors, remain today so skeptical of the principle or are often willing to ignore the prohibition against adverse inferences from silence. Principles once unsettled can find general and wide acceptance in the legal culture, and there can be little doubt that the rule prohibiting an inference of guilt from a defendant's rightful silence has become an essential feature of our legal tradition. This process began even before When was being considered by this Court, some 44 States did not allow a prosecutor to invite the jury to make an adverse inference from the defendant's refusal to testify at trial. See The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights. The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege. Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in 3E1.1 of the United States Sentencing Guidelines is a separate question. It is not before us, and we express no view on it. By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled selfincrimination. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice O'Connor

majority

Bennett v. New Jersey

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1984-053

The issue presented is whether substantive provisions of the 1978 Amendments to Title I of the Elementary and Secondary *634 Education Act apply retroactively for determining if Title I funds were misused during the years 1970-1972. This case was previously before the Court, and we then held that the Federal Government may recover misused funds from States that provided assurances that federal grants would be spent only on eligible programs. Bell v. New Jersey, 461 U.S. 773 (1983). We expressly declined, however, to address the retroactive effect of substantive provisions of the 1978 Amendments. Id., at 781, n. 6, 782, and n. 7. On remand from our decision, the Court of Appeals for the Third Circuit held that the standards of the 1978 Amendments should apply to determine if funds were improperly expended in previous years. State of New Jersey, Dept. of Ed. v. Hufstedler, 724 F.2d 34 (1983). We granted certiorari, 469 U.S. 815 (1984), and we now reverse. I Title I of the Elementary and Secondary Education Act of 1965, Pub. L. 89-10, 79 Stat. 27, as amended, 20 U.S. C. § 241a et seq. (1976 ed.), provided federal grants-in-aid to support compensatory education for disadvantaged children in low-income areas.[1] Based on the theory that poverty and low scholastic achievement are closely related, Title I allocated funds to local school districts based on their numbers of impoverished children and the State's average per-pupil expenditures. H. R. Rep. No. 95-1137, pp. 4, 8 (1978); S. Rep. No. 95-856, p. 5 (1978); see 20 U.S. C. §§ 241a, 241c(a)(2) (1976 ed.); S. Rep. No. 146, 89th Cong., 1st Sess., 5-6 (1965). Within particular school districts, Title I funds were in turn directed to schools that had high concentrations *635 of children from low-income families. § 241e(a)(1)(A). Once Title I funds reached the level of targeted schools, however, all children in those schools who needed compensatory education services were eligible for the program regardless of family income. H. R. Rep. No. 95-1137, at 4; 45 CFR § 116a.21(e) (1977); 45 CFR § 116.17(f) (1972). Respecting the deeply rooted tradition of state and local control over education, Congress left to local officials the development of particular programs to meet the needs of educationally disadvantaged children. Federal restrictions on the use of funds at the local level sought only to assure that Title I moneys were properly used "to provide specific types of children in specific areas with special services above and beyond those normally provided as part of the district's regular educational program." H. R. Rep. No. 95-1137, at 4. The goal of providing assistance for compensatory programs for certain disadvantaged children while respecting the tradition of state and local control over education was implemented by statutory provisions that governed the distribution of Title I funds. Local school districts determined the content of particular programs, and the appropriate state education agency approved the applications for Title I assistance submitted by local education agencies. 20 U.S. C. § 241e(a) (1976 ed.). After determining that the applications complied with the requirements of federal law, the state education agencies distributed Title I funds to the school districts. §§ 241e(a), 241g. The state education agencies in turn received grants from the Department of Education upon providing assurances to the Secretary that the local educational agencies would spend the funds only on programs which satisfied the requirements of Title I.[2]Bell v. New *636 Jersey, supra, at 776; 20 U.S. C. § 241f(a)(1) (1976 ed.). As noted supra, we previously held that if Title I funds were expended in violation of the provided assurances, the Federal Government may recover the misused funds from the States. This case arises from a determination by the Department of Education that respondent New Jersey must repay $1,031,304 in Title I funds that were improperly spent during the years 1970-1972 in Newark, N. J. 461 U.S., at 777. There is no contention that the Newark School District received an incorrect allocation of Title I funds or that funds were not used for compensatory education programs. Instead, the Secretary's demand for repayment rests on the finding that Title I funds were not directed to the proper schools within the Newark School District. Regulations in effect when the moneys were expended provided that school attendance areas within a school district could receive Title I funds if either the percentage or number of children from low-income families residing in the area was at least as high as the districtwide average. 45 CFR § 116.17(d) (1972). Alternatively, the entire school district could be designated as eligible for Title I services, but only if there were no wide variances in the concentrations of children from low-income families among school attendance areas in the district. Ibid. A federal audit completed in 1975 determined that the New Jersey Department of Education had incorrectly approved grant applications allowing 13 Newark schools to receive Title I funds in violation of these requirements. App. 9-51. The auditors found that during the 1971-1972 school year, the percentage of children from low-income families for the 13 schools ranged from 13% to 33.5%, while the districtwide average for Newark was 33.9%. Id., at 23-24. Consequently, for that school year the auditors disallowed Title I expenditures totaling $1,029,630. The auditors also found that funds were misused during the 1970-1971 school year, *637 but because of the statute of limitations, only $1,674 remains at issue for that year. App. to Pet. for Cert. 36a-37a. In June 1976, the Department issued a final determination letter to New Jersey demanding repayment of the misused funds. App. 52-58. New Jersey sought further administrative review, and hearings were held before the Education Appeal Board (Board). In those proceedings, New Jersey argued that the Department was not authorized to compel repayment, that the auditors had miscalculated the percentages of children from low-income families, and that the entire Newark School District qualified as a Title I project area under the regulations. App. to Pet. for Cert. 35a-58a. The Board rejected each of these arguments, id., at 37a-58a, and ordered repayment. The Secretary declined to review the Board's order, which thereby became final. Id., at 59a. New Jersey then sought judicial review, and the Court of Appeals for the Third Circuit held that the Department did not have authority to issue the order demanding repayment. State of New Jersey, Dept. of Ed. v. Hufstedler, 662 F.2d 208 (1981). Accordingly, the Court of Appeals did not address arguments made by New Jersey challenging the Department's determination that funds were misused. Id., at 209. After remand from our decision in Bell v. New Jersey, the State argued for the first time that the 1978 Amendments to Title I, Pub. L. 95-561, 92 Stat. 2143, 20 U.S. C. § 2701 et seq., should determine whether the funds were misused during the years 1970-1972. 724 F.2d, at 36, n. 1. The Court of Appeals agreed and remanded the case to the Secretary to determine whether the disputed expenditures conformed to the 1978 standards. Id., at 37. We hold that the substantive standards of the 1978 Amendments do not affect obligations under previously made grants, and we reverse. Our holding does not address whether the Secretary correctly determined that Title I funds were misused under the law in effect during the years 1970-1972, and New Jersey may renew its contentions in this regard on remand. *638 II The Court of Appeals based its holding on a presumption that statutory amendments apply retroactively to pending cases. Relying on language from Bradley v. Richmond School Board, 416 U.S. 696 (1974), the Court of Appeals observed that "[a] federal court or administrative agency must `apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.' " 724 F.2d, at 36, quoting 416 U.S., at 711. We conclude, however, that reliance on such a presumption in this context is inappropriate. Both the nature of the obligations that arose under the Title I program and Bradley itself suggest that changes in substantive requirements for federal grants should not be presumed to operate retroactively. Moreover, practical considerations related to the administration of federal grant programs imply that obligations generally should be determined by reference to the law in effect when the grants were made.[3] As we explained in our first decision in this case, "the pre-1978 version [of Title I] contemplated that States misusing federal funds would incur a debt to the Federal Government for the amount misused." 461 U.S., at 782. Although our conclusion was based on the statutory provisions, id., at 782-790, we also acknowledged that Title I, like many other federal grant programs, was "much in the nature of a contract." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981). "The State chose to participate in the Title I program and, as a condition of receiving the *639 grant, freely gave its assurances that it would abide by the conditions of Title I." 461 U.S., at 790. A State that failed to fulfill its assurances has no right to retain the federal funds, and the Federal Government is entitled to recover amounts spent contrary to terms of the grant agreement. Id., at 791; see id., at 794 (WHITE, J., concurring). In order to obtain the Title I funds involved here, New Jersey gave assurances that the money would be distributed to local education agencies for programs that qualified under the existing statute and regulations. See 20 U.S. C. § 241f(a) (1976 ed.); 45 CFR § 116.31(c) (1972). Assuming that these assurances were not met for the years 1970-1972, see 461 U.S., at 791, the State became liable for the improper expenditures; as a correlative, the Federal Government had, before the 1978 Amendments, a pre-existing right of recovery. Id., at 782, and n. 7. The fact that the Government's right to recover any misused funds preceded the 1978 Amendments indicates that the presumption announced in Bradley does not apply here. Bradley held that a statutory provision for attorney's fees applied retroactively to a fee request that was pending when the statute was enacted. This holding rested on the general principle that a court must apply the law in effect at the time of its decision, see United States v. Schooner Peggy, 1 Cranch 103 (1801), which Bradley concluded holds true even if the intervening law does not expressly state that it applies to pending cases. 416 U.S., at 715. Bradley, however, expressly acknowledged limits to this principle. "The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional." Id., at 720. This limitation comports with another venerable rule of statutory interpretation, i. e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect. See, e. g., United States v. Security Industrial Bank, 459 U.S. 70, 79 *640 (1982); Greene v. United States, 376 U.S. 149, 160 (1964). Cf. Bradley, supra, at 721 (noting that statutory change did not affect substantive obligations). Practical considerations related to the enforcement of the requirements of grant-in-aid programs also suggest that expenditures must presumptively be evaluated by the law in effect when the grants were made. The federal auditors who completed their review of the disputed expenditures in 1975 could scarcely base their findings on the substantive standards adopted in the 1978 Amendments.[4] Similarly, New Jersey when it applied for and received Title I funds for the years 1970-1972 had no basis to believe that the propriety of the expenditures would be judged by any standards other than the ones in effect at the time. Cf. Pennhurst State School and Hospital, supra, at 17, 24-25. Retroactive application of changes in the substantive requirements of a federal grant program would deny both federal auditors and grant recipients fixed, predictable standards for determining if expenditures are proper. Requiring audits to be redetermined in response to every statutory change that occurs while review is pending would be unworkable and would unfairly make obligations depend on the fortuitous timing of completion of the review process. Moreover, the practical difficulties associated with retroactive application of substantive provisions in the 1978 Amendments would be particularly objectionable, because Congress *641 expressly intended those Amendments to strengthen the auditing process by clarifying the Department's responsibilities and specifying the procedures to be followed. See Bell v. New Jersey, 461 U. S., at 789; S. Rep. No. 95-856, at 37, 131; H. R. Rep. No. 95-1137, at 53, 161. We conclude that absent a clear indication to the contrary in the relevant statutes or legislative history, changes in the substantive standards governing federal grant programs do not alter obligations and liabilities arising under earlier grants. III Neither the statutory language nor the legislative history indicates that Congress intended the substantive standards of the 1978 Amendments to apply retroactively. Congress adopted the amendments as part of a general reauthorization of Title I that did not depart from the program's basic philosophy, but instead sought to clarify and simplify provisions concerning implementation. H. R. Rep. No. 95-1137, at 2, 8; S. Rep. No. 95-586, at 2, 8, 130. The substantive provisions of the 1978 Amendments to Title I were expressly made applicable for grants between October 1, 1978, and September 30, 1983. 20 U.S. C. § 2702. See also Pub. L. 95-561, § 1530, 92 Stat. 2380 (provisions shall take effect on October 1, 1978, "[e]xcept as otherwise specifically provided in this Act"). The House Report similarly stated that the changed requirements were intended to clarify "the manner in which school districts are to distribute Title I funds among eligible schools and children." H. R. Rep. No. 95-1137, at 21 (emphasis added). Thus, both the general purpose of the 1978 Amendments and the more specific references in the statute and legislative history suggest that the new requirements were intended to apply prospectively. The Court of Appeals did not rely on evidence from the legislative history to conclude that the 1978 Amendments in general have retroactive effect. Instead, the court below observed that the amendments to the school attendance area *642 eligibility requirements "were designed to correct regulations that frustrated the basic objectives of the Title I program." 724 F.2d, at 36-37. This observation mischaracterizes both the regulations in effect prior to 1976 and the provisions adopted by Congress in 1978. Regulations adopted in 1967, see 32 Fed. Reg. 2742, and in effect for nearly 10 years, generally restricted Title I assistance to school attendance areas having a percentage of low-income children at least as high as the districtwide average. Supra, at 636; see also Office of Education, Title I Program Guide No. 44, ¶ 1.1 (1968) (explaining eligibility requirements). This requirement deliberately channeled funds to the poorest areas within any particular school district. One consequence of this comparative approach, however, was that a school located in a disadvantaged district might be ineligible for assistance even though it would have qualified if it were located in a wealthier district.[5] Although later changes in the eligibility standards attempted to mitigate this incidental effect, *643 they do not indicate that the earlier regulations conflicted with the policies of Title I. During consideration of 1974 Amendments to Title I, a House Committee observed that inflexible application of the existing regulations might make schools with high proportions of low-income children ineligible. H. R. Rep. No. 93-805, p. 17 (1974) ("[I]t was never intended by the Act to render any school with a 30% concentration ineligible"). Although the 1974 Amendments made changes in the school eligibility requirements, they did not specifically address this situation.[6] Apparently prompted by the concerns of Congress, the Department modified its regulations in 1976 to permit a school attendance area to qualify for funds if more than 30% of its children were from low-income families, even though the districtwide average might exceed 30%. See 42 Fed. Reg. 42914, 42917 (1976), codified in 45 CFR § 116a.20 (b)(2) (1977); National Institute of Education, Title I Funds Allocation: The Current Formula 57, 109 (1977). The 1978 Amendments refined this alternative by lowering the percentage to 25% and requiring the school district to guarantee that state and federal funding for compensatory education would not be reduced for any other school attendance area that received Title I funds in the preceding year. 20 U.S. C. § 2732(a)(1). The evolution of the school eligibility requirements no doubt reflects a reassessment of the proper means to implement *644 the goals of Title I. Nonetheless, the changes made since 1976 simply do not support the conclusion of the Court of Appeals and the contention of New Jersey that the earlier regulations were inconsistent with Title I's policies. The regulations in place from 1967 to 1976 targeted assistance to the neediest areas within each school district in conformance with the statutory directive that funds should go to school attendance areas having high concentrations of children from low-income families. See 20 U.S. C. § 241e(a) (1976 ed.). Moreover, available funds never were sufficient to provide services to all eligible students, H. R. Rep. No. 95-1137, at 7, and Title I required funds to be concentrated on particular projects rather than diffused among all eligible school attendance areas. See 20 U.S. C. § 241e(a)(1)(B) (1976 ed.); 45 CFR § 116.17(c) (1972). Thus, the school eligibility requirements helped to assure that funds would not be spread so thinly as to impair the effectiveness of particular Title I projects. Cf. H. R. Rep. No. 1814, 89th Cong., 2d Sess., 3 (1966) (suggesting that limited funds should be directed to schools with highest concentrations of children from low-income families); S. Rep. No. 95-856, at 7 ("[T]itle I is successful in directing substantial federal aid to those areas which have the highest proportions of children from low-income families"). Congress did not abandon the concerns underlying the earlier regulations when it enacted the 1978 Amendments. Legislative Reports spoke approvingly of the longstanding policy to direct funds to school attendance areas "having the highest concentrations of low-income families." Id., at 11; H. R. Rep. No. 95-1137, at 21. Although the 1978 Amendments relaxed the eligibility requirements for school attendance areas, the intent was "to give districts more flexibility without watering down the targeting features intended to give the programs a focus when funds are limited." Ibid. The 25% eligibility standard was itself the product of a compromise at Conference. The House bill, see id., at 22, 211, but not the Senate amendment, provided that any school *645 attendance area having a 20% concentration of poor children must be designated as eligible for Title I. H. R. Conf. Rep. No. 95-1753, p. 255 (1978). The Conference agreed to an amendment that made the designation of these areas optional, increased the required percentage to 25%, and provided that other areas must retain the same amount of funds they received the preceding year. Ibid. Although it is fair to infer that Congress determined that the targeting features of Title I would not be unduly compromised by adoption of the 25% standard, the background to the 1978 Amendments does not suggest the earlier regulations frustrated the program or that Congress intended the Amendments to apply to prior grants. IV New Jersey urges that we affirm the holding below on the ground that the Court of Appeals reached an equitable result. The determination by the Secretary does not question the good faith of New Jersey or the Newark School District with respect to the disputed expenditures, which we acknowledge might be permissible under standards enacted in 1978 or currently in effect.[7] Nonetheless, we find no inequity in requiring repayment of funds that were spent contrary to the assurances provided by the State in obtaining the grants. Particular cases might appear to present exceptions to this rule, but given the statutory and administrative framework for assuring compliance with the requirements of Title I, we do not think recognizing such *646 exceptions is within the province of the courts. Congress has already accommodated equitable concerns in the statutory provisions governing recovery of misused funds. Those provisions limit liability for repayment to funds received during the five years preceding the final written notice of liability, 20 U.S. C. § 884 (1976 ed.), repealed and replaced by 20 U.S. C. § 1234a(g), and authorize the Secretary, under certain conditions, to return to the State up to 75% of any amount recovered. § 1234e(a). Of course, if Congress believes that the equities so warrant, it may relax the requirements applicable to prior grants or forgive liability entirely. The role of a court in reviewing a determination by the Secretary that funds have been misused is to judge whether the findings are supported by substantial evidence and reflect application of the proper legal standards. Bell v. New Jersey, 461 U. S., at 792. Where the Secretary has properly concluded that funds were misused under the legal standards in effect when the grants were made, a reviewing court has no independent authority to excuse repayment based on its view of what would be the most equitable outcome. Cf. Bennett v. Kentucky Dept. of Education, post, at 662-663. Because the Court of Appeals has not yet addressed New Jersey's arguments that the demanded repayment does not reflect proper application of the standards in effect during 1970-1972, the State may renew these contentions on remand. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the consideration or decision of this case.

The issue presented is whether substantive provisions of the 1978 Amendments to Title I of the Elementary and Secondary *634 Education Act apply retroactively for determining if Title I funds were misused during the years This case was previously before the Court, and we then held that the Federal Government may recover misused funds from States that provided assurances that federal grants would be spent only on eligible programs. We expressly declined, however, to address the retroactive effect of substantive provisions of the 1978 Amendments. and n. 7. On remand from our decision, the Court of Appeals for the Third Circuit held that the standards of the 1978 Amendments should apply to determine if funds were improperly expended in previous years. State of New Dept. of We granted certiorari, and we now reverse. I Title I of the Elementary and Secondary Education Act of 1965, Stat. 27, as amended, 20 U.S. C. 241a et seq. (1976 ed.), provided federal grants-in-aid to support compensatory education for disadvantaged children in low-income areas.[1] Based on the theory that poverty and low scholastic achievement are closely related, Title I allocated funds to local school districts based on their numbers of impoverished children and the State's average per-pupil expenditures. H. R. Rep. No. 95-1137, pp. 4, 8 (1978); S. Rep. No. 95-856, p. 5 (1978); see 20 U.S. C. 241a, 241c(a)(2) (1976 ed.); S. Rep. No. 146, 89th Cong., 1st Sess., 5-6 (1965). Within particular school districts, Title I funds were in turn directed to schools that had high concentrations *635 of children from low-income families. 241e(a)(1)(A). Once Title I funds reached the level of targeted schools, however, all children in those schools who needed compensatory education services were eligible for the program regardless of family income. H. R. Rep. No. 95-1137, at 4; 45 CFR 116a.21(e) (1977); 45 CFR 116.(f) (1972). Respecting the deeply rooted tradition of state and local control over education, Congress left to local officials the development of particular programs to meet the needs of educationally disadvantaged children. Federal restrictions on the use of funds at the local level sought only to assure that Title I moneys were properly used "to provide specific types of children in specific areas with special services above and beyond those normally provided as part of the district's regular educational program." H. R. Rep. No. 95-1137, at 4. The goal of providing assistance for compensatory programs for certain disadvantaged children while respecting the tradition of state and local control over education was implemented by statutory provisions that governed the distribution of Title I funds. Local school districts determined the content of particular programs, and the appropriate state education agency approved the applications for Title I assistance submitted by local education agencies. 20 U.S. C. 241e(a) (1976 ed.). After determining that the applications complied with the requirements of federal law, the state education agencies distributed Title I funds to the school districts. 241e(a), 241g. The state education agencies in turn received grants from the Department of Education upon providing assurances to the Secretary that the local educational agencies would spend the funds only on programs which satisfied the requirements of Title I.[2]Bell v. New *636 ; 20 U.S. C. 241f(a)(1) (1976 ed.). As we previously held that if Title I funds were expended in violation of the provided assurances, the Federal Government may recover the misused funds from the States. This case arises from a determination by the Department of Education that respondent New must repay $1,031,304 in Title I funds that were improperly spent during the years 1970-1972 in Newark, N. There is no contention that the Newark School District received an incorrect allocation of Title I funds or that funds were not used for compensatory education programs. Instead, the Secretary's demand for repayment rests on the finding that Title I funds were not directed to the proper schools within the Newark School District. Regulations in effect when the moneys were expended provided that school attendance areas within a school district could receive Title I funds if either the percentage or number of children from low-income families residing in the area was at least as high as the districtwide 45 CFR 116.(d) (1972). Alternatively, the entire school district could be designated as eligible for Title I services, but only if there were no wide variances in the concentrations of children from low-income families among school attendance areas in the district. A federal audit completed in 1975 determined that the New Department of Education had incorrectly approved grant applications allowing 13 Newark schools to receive Title I funds in violation of these requirements. App. 9-51. The auditors found that during the 1971-1972 school year, the percentage of children from low-income families for the 13 schools ranged from 13% to 33.5%, while the districtwide average for Newark was 33.9%. Consequently, for that school year the auditors disallowed Title I expenditures totaling $1,029,630. The auditors also found that funds were misused during the 1970-1971 school year, *637 but because of the statute of limitations, only $1,674 remains at issue for that year. App. to Pet. for Cert. 36a-37a. In June 1976, the Department issued a final determination letter to New demanding repayment of the misused funds. App. 52-58. New sought further administrative review, and hearings were held before the Education Appeal Board (Board). In those proceedings, New argued that the Department was not authorized to compel repayment, that the auditors had miscalculated the percentages of children from low-income families, and that the entire Newark School District qualified as a Title I project area under the regulations. App. to Pet. for Cert. 35a-58a. The Board rejected each of these arguments, a-58a, and ordered repayment. The Secretary declined to review the Board's order, which thereby became final. at 59a. New then sought judicial review, and the Court of Appeals for the Third Circuit held that the Department did not have authority to issue the order demanding repayment. State of New Dept. of Accordingly, the Court of Appeals did not address arguments made by New challenging the Department's determination that funds were misused. After remand from our decision in the State argued for the first time that the 1978 Amendments to Title I, Stat. 2143, 20 U.S. C. 2701 et seq., should determine whether the funds were misused during the years n. 1. The Court of Appeals agreed and remanded the case to the Secretary to determine whether the disputed expenditures conformed to the 1978 standards. We hold that the substantive standards of the 1978 Amendments do not affect obligations under previously made grants, and we reverse. Our holding does not address whether the Secretary correctly determined that Title I funds were misused under the law in effect during the years 1970-1972, and New may renew its contentions in this regard on remand. *638 II The Court of Appeals based its holding on a presumption that statutory amendments apply retroactively to pending Relying on language from the Court of Appeals observed that "[a] federal court or administrative agency must `apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.' " We conclude, however, that reliance on such a presumption in this context is inappropriate. Both the nature of the obligations that arose under the Title I program and itself suggest that changes in substantive requirements for federal grants should not be presumed to operate retroactively. Moreover, practical considerations related to the administration of federal grant programs imply that obligations generally should be determined by reference to the law in effect when the grants were made.[3] As we explained in our first decision in this case, "the pre-1978 version [of Title I] contemplated that States misusing federal funds would incur a debt to the Federal Government for the amount misused." Although our conclusion was based on the statutory provisions, we also acknowledged that Title I, like many other federal grant programs, was "much in the nature of a contract." Pennhurst State School and "The State chose to participate in the Title I program and, as a condition of receiving the *639 grant, freely gave its assurances that it would abide by the conditions of Title I." A State that failed to fulfill its assurances has no right to retain the federal funds, and the Federal Government is entitled to recover amounts spent contrary to terms of the grant agreement. ; see (WHITE, concurring). In order to obtain the Title I funds involved here, New gave assurances that the money would be distributed to local education agencies for programs that qualified under the existing statute and regulations. See 20 U.S. C. 241f(a) (1976 ed.); 45 CFR 116.31(c) (1972). Assuming that these assurances were not met for the years 1970-1972, see 461 U.S., the State became liable for the improper expenditures; as a correlative, the Federal Government had, before the 1978 Amendments, a pre-existing right of recovery. and n. 7. The fact that the Government's right to recover any misused funds preceded the 1978 Amendments indicates that the presumption announced in does not apply here. held that a statutory provision for attorney's fees applied retroactively to a fee request that was pending when the statute was enacted. This holding rested on the general principle that a court must apply the law in effect at the time of its decision, see United which concluded holds true even if the intervening law does not expressly state that it applies to pending however, expressly acknowledged limits to this principle. "The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional." This limitation comports with another venerable rule of statutory interpretation, i. e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect. See, e. g., United ; Cf. Practical considerations related to the enforcement of the requirements of grant-in-aid programs also suggest that expenditures must presumptively be evaluated by the law in effect when the grants were made. The federal auditors who completed their review of the disputed expenditures in 1975 could scarcely base their findings on the substantive standards adopted in the 1978 Amendments.[4] Similarly, New when it applied for and received Title I funds for the years 1970-1972 had no basis to believe that the propriety of the expenditures would be judged by any standards other than the ones in effect at the time. Cf. Pennhurst State School and at 24-25. Retroactive application of changes in the substantive requirements of a federal grant program would deny both federal auditors and grant recipients fixed, predictable standards for determining if expenditures are proper. Requiring audits to be redetermined in response to every statutory change that occurs while review is pending would be unworkable and would unfairly make obligations depend on the fortuitous timing of completion of the review process. Moreover, the practical difficulties associated with retroactive application of substantive provisions in the 1978 Amendments would be particularly objectionable, because Congress *641 expressly intended those Amendments to strengthen the auditing process by clarifying the Department's responsibilities and specifying the procedures to be followed. See ; S. Rep. No. 95-856, 131; H. R. Rep. No. 95-1137, at 53, 161. We conclude that absent a clear indication to the contrary in the relevant statutes or legislative history, changes in the substantive standards governing federal grant programs do not alter obligations and liabilities arising under earlier grants. III Neither the statutory language nor the legislative history indicates that Congress intended the substantive standards of the 1978 Amendments to apply retroactively. Congress adopted the amendments as part of a general reauthorization of Title I that did not depart from the program's basic philosophy, but instead sought to clarify and simplify provisions concerning implementation. H. R. Rep. No. 95-1137, at 2, 8; S. Rep. No. 95-586, at 2, 8, 130. The substantive provisions of the 1978 Amendments to Title I were expressly made applicable for grants between October 1, 1978, and September 30, 20 U.S. C. 2702. See also Pub. L. 95-561, 1530, The House Report similarly stated that the changed requirements were intended to clarify "the manner in which school districts are to distribute Title I funds among eligible schools and children." H. R. Rep. No. 95-1137, at 21 (emphasis added). Thus, both the general purpose of the 1978 Amendments and the more specific references in the statute and legislative history suggest that the new requirements were intended to apply prospectively. The Court of Appeals did not rely on evidence from the legislative history to conclude that the 1978 Amendments in general have retroactive effect. Instead, the court below observed that the amendments to the school attendance area *642 eligibility requirements "were designed to correct regulations that frustrated the basic objectives of the Title I program." -37. This observation mischaracterizes both the regulations in effect prior to 1976 and the provisions adopted by Congress in 1978. Regulations adopted in 1967, see and in effect for nearly 10 years, generally restricted Title I assistance to school attendance areas having a percentage of low-income children at least as high as the districtwide ; see also Office of Education, Title I Program Guide No. 44, ¶ 1.1 (1968) (explaining eligibility requirements). This requirement deliberately channeled funds to the poorest areas within any particular school district. One consequence of this comparative approach, however, was that a school located in a disadvantaged district might be ineligible for assistance even though it would have qualified if it were located in a wealthier district.[5] Although later changes in the eligibility standards attempted to mitigate this incidental effect, *643 they do not indicate that the earlier regulations conflicted with the policies of Title I. During consideration of 1974 Amendments to Title I, a House Committee observed that inflexible application of the existing regulations might make schools with high proportions of low-income children ineligible. H. R. Rep. No. 93-805, p. ("[I]t was never intended by the Act to render any school with a 30% concentration ineligible"). Although the 1974 Amendments made changes in the school eligibility requirements, they did not specifically address this situation.[6] Apparently prompted by the concerns of Congress, the Department modified its regulations in 1976 to permit a school attendance area to qualify for funds if more than 30% of its children were from low-income families, even though the districtwide average might exceed 30%. See 429 (1976), codified in 45 CFR 116a.20 (b)(2) (1977); National Institute of Education, Title I Funds Allocation: The Current Formula 57, 109 (1977). The 1978 Amendments refined this alternative by lowering the percentage to 25% and requiring the school district to guarantee that state and federal funding for compensatory education would not be reduced for any other school attendance area that received Title I funds in the preceding year. 20 U.S. C. 2732(a)(1). The evolution of the school eligibility requirements no doubt reflects a reassessment of the proper means to implement *644 the goals of Title I. Nonetheless, the changes made since 1976 simply do not support the conclusion of the Court of Appeals and the contention of New that the earlier regulations were inconsistent with Title I's policies. The regulations in place from 1967 to 1976 targeted assistance to the neediest areas within each school district in conformance with the statutory directive that funds should go to school attendance areas having high concentrations of children from low-income families. See 20 U.S. C. 241e(a) (1976 ed.). Moreover, available funds never were sufficient to provide services to all eligible students, H. R. Rep. No. 95-1137, at 7, and Title I required funds to be concentrated on particular projects rather than diffused among all eligible school attendance areas. See 20 U.S. C. 241e(a)(1)(B) (1976 ed.); 45 CFR 116.(c) (1972). Thus, the school eligibility requirements helped to assure that funds would not be spread so thinly as to impair the effectiveness of particular Title I projects. Cf. H. R. Rep. No. 1814, 89th Cong., 2d Sess., 3 (1966) (suggesting that limited funds should be directed to schools with highest concentrations of children from low-income families); S. Rep. No. 95-856, at 7 ("[T]itle I is successful in directing substantial federal aid to those areas which have the highest proportions of children from low-income families"). Congress did not abandon the concerns underlying the earlier regulations when it enacted the 1978 Amendments. Legislative Reports spoke approvingly of the longstanding policy to direct funds to school attendance areas "having the highest concentrations of low-income families." ; H. R. Rep. No. 95-1137, at 21. Although the 1978 Amendments relaxed the eligibility requirements for school attendance areas, the intent was "to give districts more flexibility without watering down the targeting features intended to give the programs a focus when funds are limited." The 25% eligibility standard was itself the product of a compromise at Conference. The House bill, see but not the Senate amendment, provided that any school *645 attendance area having a 20% concentration of poor children must be designated as eligible for Title I. H. R. Conf. Rep. No. 95-53, p. 255 (1978). The Conference agreed to an amendment that made the designation of these areas optional, increased the required percentage to 25%, and provided that other areas must retain the same amount of funds they received the preceding year. Although it is fair to infer that Congress determined that the targeting features of Title I would not be unduly compromised by adoption of the 25% standard, the background to the 1978 Amendments does not suggest the earlier regulations frustrated the program or that Congress intended the Amendments to apply to prior grants. IV New urges that we affirm the holding below on the ground that the Court of Appeals reached an equitable result. The determination by the Secretary does not question the good faith of New or the Newark School District with respect to the disputed expenditures, which we acknowledge might be permissible under standards enacted in 1978 or currently in effect.[7] Nonetheless, we find no inequity in requiring repayment of funds that were spent contrary to the assurances provided by the State in obtaining the grants. Particular cases might appear to present exceptions to this rule, but given the statutory and administrative framework for assuring compliance with the requirements of Title I, we do not think recognizing such *646 exceptions is within the province of the courts. Congress has already accommodated equitable concerns in the statutory provisions governing recovery of misused funds. Those provisions limit liability for repayment to funds received during the five years preceding the final written notice of liability, 20 U.S. C. 884 (1976 ed.), repealed and replaced by 20 U.S. C. 1234a(g), and authorize the Secretary, under certain conditions, to return to the State up to 75% of any amount recovered. 1234e(a). Of course, if Congress believes that the equities so warrant, it may relax the requirements applicable to prior grants or forgive liability entirely. The role of a court in reviewing a determination by the Secretary that funds have been misused is to judge whether the findings are supported by substantial evidence and reflect application of the proper legal standards. Where the Secretary has properly concluded that funds were misused under the legal standards in effect when the grants were made, a reviewing court has no independent authority to excuse repayment based on its view of what would be the most equitable outcome. Cf. Bennett v. Kentucky Dept. of Education, post, at 662-663. Because the Court of Appeals has not yet addressed New 's arguments that the demanded repayment does not reflect proper application of the standards in effect during 1970-1972, the State may renew these contentions on remand. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the consideration or decision of this case.

Justice Rehnquist

majority

Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank

https://www.courtlistener.com/opinion/118316/florida-prepaid-postsecondary-ed-expense-bd-v-college-savings-bank/

https://www.courtlistener.com/api/rest/v3/clusters/118316/

1998-089

In 1992, Congress amended the patent laws and expressly abrogated the States' sovereign immunity from claims of patent infringement. Respondent College Savings then sued the State of Florida for patent infringement, and the Court of Appeals held that Congress had validly abrogated the State's sovereign immunity from infringement suits pursuant to its authority under § 5 of the Fourteenth Amendment. We hold that, under City of Boerne v. Flores, 521 U.S. 507 (1997), the statute cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause, and accordingly reverse the decision of the Court of Appeals. I Since 1987, respondent College Savings Bank, a New Jersey chartered savings bank located in Princeton, New Jersey, has marketed and sold certificates of deposit known as the CollegeSure CD, which are essentially annuity contracts for financing future college expenses. College Savings obtained *631 a patent for its financing methodology, designed to guarantee investors sufficient funds to cover the costs of tuition for colleges. Petitioner Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid) is an entity created by the State of Florida that administers similar tuition prepayment contracts available to Florida residents and their children. See Fla. Stat. § 240.551(1) (Supp. 1998). College Savings claims that, in the course of administering its tuition prepayment program, Florida Prepaid directly and indirectly infringed College Savings' patent. College Savings brought an infringement action under 35 U.S. C. § 271(a) against Florida Prepaid in the United States District Court for the District of New Jersey in November 1994.[1] By the time College Savings filed its suit, Congress had already passed the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35 U.S. C. §§ 271(h), 296(a). Before this legislation, the patent laws stated only that "whoever" without authority made, used, or sold a patented invention infringed the patent. 35 U.S. C. § 271(a) (1988 ed.).[2] Applying this Court's decision in Atas- *632 cadero State Hosp. v. Scanlon, 473 U.S. 234, 242-243 (1985), the Federal Circuit had held that the patent laws failed to contain the requisite statement of intent to abrogate state sovereign immunity from infringement suits. See, e. g., Chew v. California, 893 F.2d 331 (1989). In response to Chew and similar decisions, Congress enacted the Patent Remedy Act to "clarify that States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of patents and plant variety protections." Pub. L. 102-560, preamble, 106 Stat. 4230; see also H. R. Rep. No. 101-960, pt. 1, pp. 7, 33 (1990) (hereinafter H. R. Rep.); S. Rep. No. 102-280, pp. 7, 1, "As 1, 5-6 (1992) (hereinafter S. Rep.). Section 271(h) now states: used in this section, the term `whoever' includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his official capacity." Section 296(a) addresses the sovereign immunity issue even more specifically: "Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his official capacity, shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person . . . for infringement of a patent under section 271, or for any other violation under this title." Relying on these provisions, College Savings alleged that Florida Prepaid had willfully infringed its patent under *633 § 271, as well as contributed to and induced infringement. College Savings sought declaratory and injunctive relief as well as damages, attorney's fees, and costs. After this Court decided Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), Florida Prepaid moved to dismiss the action on the grounds of sovereign immunity.[3] Florida Prepaid argued that the Patent Remedy Act was an unconstitutional attempt by Congress to use its Article I powers to abrogate state sovereign immunity. College Savings responded that Congress had properly exercised its power pursuant to § 5 of the Fourteenth Amendment to enforce the guarantees of the Due Process Clause in § 1 of the Amendment. The United States intervened to defend the constitutionality of the statute. Agreeing with College Savings, the District Court denied Florida Prepaid's motion to dismiss, 948 F. Supp. 400 (N. J. 1996), and the Federal Circuit affirmed, 148 F.3d 1343 (1998). The Federal Circuit held that Congress had clearly expressed its intent to abrogate the States' immunity from suit in federal court for patent infringement, and that Congress had the power under § 5 of the Fourteenth Amendment to do so. Id., at 1347. The court reasoned that patents are property subject to the protections of the Due Process Clause and that Congress' objective in enacting the Patent Remedy Act was permissible because it sought to prevent States from depriving patent owners of this property without due process. See id., at 1349-1350. The court rejected Florida Prepaid's argument that it and other States had not deprived patent owners of their property without due process, and refused to "deny Congress the authority to subject all states to suit for patent infringement in the federal courts, regardless of the extent of procedural due process that may exist at any particular time." Id., at 1351. Finally, *634 the court held that the Patent Remedy Act was a proportionate response to state infringement and an appropriate measure to protect patent owners' property under this Court's decision in City of Boerne, 521 U. S., at 519. The court concluded that significant harm results from state infringement of patents, 148 F.3d, at 1353-1354, and "[t]here is no sound reason to hold that Congress cannot subject a state to the same civil consequences that face a private party infringer," id., at 1355. We granted certiorari, 525 U.S. 1064 (1999), and now reverse. II The Eleventh Amendment provides: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." As the Court recently explained in Seminole Tribe, supra, at 54: "Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, `we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.' That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U.S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that `"[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent."' Id., at 13 (emphasis deleted), quoting The Federalist No. 81 . . . . For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States `was not contemplated by *635 the Constitution when establishing the judicial power of the United States.' Hans, supra, at 15." Here, College Savings sued the State of Florida in federal court, and it is undisputed that Florida has not expressly consented to suit. College Savings and the United States argue that Florida has impliedly waived its immunity under Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964). That argument, however, is foreclosed by our decision in the companion case overruling the constructive waiver theory announced in Parden. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., post, p. 666. College Savings and the United States nonetheless contend that Congress' enactment of the Patent Remedy Act validly abrogated the States' sovereign immunity. To determine the merits of this proposition, we must answer two questions: "first, whether Congress has `unequivocally expresse[d] its intent to abrogate the immunity,' . . . and second, whether Congress has acted `pursuant to a valid exercise of power.'" Seminole Tribe, supra, at 55. We agree with the parties and the Federal Circuit that in enacting the Patent Remedy Act, Congress has made its intention to abrogate the States' immunity "`unmistakably clear in the language of the statute.'" Dellmuth v. Muth, 491 U.S. 223, 228 (1989). Indeed, Congress' intent to abrogate could not have been any clearer. See 35 U.S. C. § 296(a) ("Any State. . . shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court. . . for infringement of a patent"). Whether Congress had the power to compel States to surrender their sovereign immunity for these purposes, however, is another matter. Congress justified the Patent Remedy Act under three sources of constitutional authority: the Patent Clause, Art. I, § 8, cl. 8; the Interstate Commerce Clause, Art. I, § 8, cl. 3; and § 5 of the Fourteenth Amendment. *636 See S. Rep., at 7-8; H. R. Rep., at 39-40.[4] In Seminole Tribe, of course, this Court overruled the plurality opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), our only prior case finding congressional authority to abrogate state sovereign immunity pursuant to an Article I power (the Commerce Clause). 517 U.S., at 72-73. Seminole Tribe makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers; hence the Patent Remedy Act cannot be sustained under either the Commerce Clause or the Patent Clause. Ibid. The Federal Circuit recognized this, and College Savings and the United States do not contend otherwise. Instead, College Savings and the United States argue that the Federal Circuit properly concluded that Congress enacted the Patent Remedy Act to secure the Fourteenth Amendment's protections against deprivations of property without due process of law. The Fourteenth Amendment provides in relevant part: "Section 1. . . . No State shall . . . deprive any person of life, liberty, or property, without due process of law.. . . . . "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." While reaffirming the view that state sovereign immunity does not yield to Congress' Article I powers, this Court in *637 Seminole Tribe also reaffirmed its holding in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that Congress retains the authority to abrogate state sovereign immunity pursuant to the Fourteenth Amendment. Our opinion explained that in Fitzpatrick, "we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution." Seminole Tribe, supra, at 59. The Court further described Fitzpatrick as holding that "through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment." Seminole Tribe, supra, at 59. College Savings and the United States are correct in suggesting that "appropriate" legislation pursuant to the Enforcement Clause of the Fourteenth Amendment could abrogate state sovereignty. Congress itself apparently thought the Patent Remedy Act could be so justified: "[T]he bill is justified as an acceptable method of enforcing the provisions of the fourteenth amendment. The Court in Lemelson v. Ampex Corp. [, 372 F. Supp. 708 (ND Ill. 1974),] recognized that a patent is a form of property, holding that a right to compensation exists for patent infringement. Additionally, because courts have continually recognized patent rights as property, the fourteenth amendment prohibits a State from depriving a person of property without due process of law." S. Rep., at 8 (footnotes omitted). We have held that "[t]he `provisions of this article,' to which § 5 refers, include the Due Process Clause of the Fourteenth Amendment." City of Boerne v. Flores, 521 U. S., at 519. But the legislation must nonetheless be "appropriate" under § 5 as that term was construed in City of Boerne. *638 There, this Court held that the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S. C. § 2000bb et seq., exceeded Congress' authority under § 5 of the Fourteenth Amendment, insofar as RFRA was made applicable to the States. RFRA was enacted "in direct response to" this Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which construed the Free Exercise Clause of the First Amendment to hold that "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." City of Boerne, supra, at 512, 514. Through RFRA, Congress reinstated the compelling governmental interest test eschewed by Smith by requiring that a generally applicable law placing a "substantial burden" on the free exercise of religion must be justified by a "compelling governmental interest" and must employ the "least restrictive means" of furthering that interest. 521 U.S., at 515-516. In holding that RFRA could not be justified as "appropriate" enforcement legislation under § 5, the Court emphasized that Congress' enforcement power is "remedial" in nature. Id., at 519. We recognized that "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into `legislative spheres of autonomy previously reserved to the States.'" Id., at 518 (citation omitted). We also noted, however, that "`[a]s broad as the congressional enforcement power is, it is not unlimited,'" ibid., and held that "Congress does not enforce a constitutional right by changing what the right is. It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation," id., at 519. Canvassing the history of the Fourteenth Amendment and *639 case law examining the propriety of Congress' various voting rights measures,[5] the Court explained: "While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect." Id., at 519-520. We thus held that for Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct. RFRA failed to meet this test because there was little support in the record for the concerns that supposedly animated the law. Id., at 530-531. And, unlike the measures in the voting rights cases, RFRA's provisions were "so out of proportion to a supposed remedial or preventive object" that RFRA could not be understood "as responsive to, or designed to prevent, unconstitutional behavior." Id., at 532; see also id., at 534 ("Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional"). Can the Patent Remedy Act be viewed as remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners? Following City of Boerne, we must first identify the Fourteenth Amendment "evil" or "wrong" that Congress intended to remedy, guided *640 by the principle that the propriety of any § 5 legislation "`must be judged with reference to the historical experience. . . it reflects.'" Id., at 525. The underlying conduct at issue here is state infringement of patents and the use of sovereign immunity to deny patent owners compensation for the invasion of their patent rights. See H. R. Rep., at 3738 ("[P]atent owners are effectively denied a remedy for damages resulting from infringement by a State or State entity"); S. Rep., at 6 ("[P]laintiffs in patent infringement cases against a State are foreclosed from damages, regardless of the State conduct"). It is this conduct then—unremedied patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act. In enacting the Patent Remedy Act, however, Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations. Unlike the undisputed record of racial discrimination confronting Congress in the voting rights cases, see City of Boerne, supra, at 525-527, Congress came up with little evidence of infringing conduct on the part of the States. The House Report acknowledged that "many states comply with patent law" and could provide only two examples of patent infringement suits against the States. See H. R. Rep., at 38. The Federal Circuit in its opinion identified only eight patent-infringement suits prosecuted against the States in the 110 years between 1880 and 1990. See 148 F.3d, at 1353-1354. Testimony before the House Subcommittee in favor of the bill acknowledged that "states are willing and able to respect patent rights. The fact that there are so few reported cases involving patent infringement claims against states underlies the point." Patent Remedy Clarification Act: Hearing on H. R. 3886 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the House Committee on the Judiciary, 101st Cong., 2d Sess., 56 (1990) (hereinafter House Hearings) (statement of William *641 S. Thompson); id., at 32 (statement of Robert Merges) ("[S]tates do occasionally find themselves in patent infringement suits"). Even the bill's sponsor conceded that "[w]e do not have any evidence of massive or widespread violation of patent laws by the States either with or without this State immunity." Id., at 22 (statement of Rep. Kastenmeier).[6] The Senate Report, as well, contains no evidence that unremedied patent infringement by States had become a problem of national import. At most, Congress heard testimony that patent infringement by States might increase in the future, see House Hearings 22 (statement of Jeffrey Samuels); id., at 36-37 (statement of Robert Merges); id., at 57 (statement of William Thompson), and acted to head off this speculative harm. See H. R. Rep., at 38. College Savings argues that by infringing a patent and then pleading immunity to an infringement suit, a State not only infringes the patent, but deprives the patentee of property without due process of law and "takes" the property in the patent without paying the just compensation required *642 by the Fifth Amendment.[7] The United States declines to defend the Act as based on the Just Compensation Clause, but joins in College Savings' defense of the Act as designed to prevent a State from depriving a patentee of property without due process of law. Florida Prepaid contends that Congress may not invoke § 5 to protect property interests that it has created in the first place under Article I. Patents, however, have long been considered a species of property. See Brown v. Duchesne, 19 How. 183, 197 (1857) ("For, by the laws of the United States, the rights of a party under a patent are his private property"); cf., Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1877) ("A patent for an invention is as much property as a patent for land"). As such, they are surely included within the "property" of which no person may be deprived by a State without due process of law. And if the Due Process Clause protects patents, we know of no reason why Congress might not legislate against their deprivation without due process under § 5 of the Fourteenth Amendment. Though patents may be considered "property" for purposes of our analysis, the legislative record still provides little support for the proposition that Congress sought to remedy a Fourteenth Amendment violation in enacting the Patent Remedy Act. The Due Process Clause provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law." U. S. Const., Amdt. 14, § 1 (emphasis added). This Court has accordingly held that "[i]n procedural due process claims, the deprivation by *643 state action of a constitutionally protected interest . . . is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis deleted). Thus, under the plain terms of the Clause and the clear import of our precedent, a State's infringement of a patent, though interfering with a patent owner's right to exclude others, does not by itself violate the Constitution. Instead, only where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent could a deprivation of property without due process result. See Parratt v. Taylor, 451 U.S. 527, 539— 541 (1981); Hudson v. Palmer, 468 U.S. 517, 532-533 (1984); id., at 539 (O'Connor, J., concurring) ("[I]n challenging a property deprivation, the claimant must either avail himself of the remedies guaranteed by state law or prove that the available remedies are inadequate . . . . When adequate remedies are provided and followed, no . . . deprivation of property without due process can result"). Congress, however, barely considered the availability of state remedies for patent infringement and hence whether the States' conduct might have amounted to a constitutional violation under the Fourteenth Amendment. It did hear a limited amount of testimony to the effect that the remedies available in some States were uncertain.[8] *644 The primary point made by these witnesses, however, was not that state remedies were constitutionally inadequate, but rather that they were less convenient than federal remedies, and might undermine the uniformity of patent law. See, e. g., House Hearings 43 (statement of Robert Merges) ("[U]niformity again dictates that that sovereign immunity is a mistake in this field because of the variance among the State's laws"), id., at 34, 41 (Merges); id., at 58 (statement of William Thompson).[9] Congress itself said nothing about the existence or adequacy of state remedies in the statute or in the Senate Report, and made only a few fleeting references to state remedies in the House Report, essentially repeating the testimony of the witnesses. See H. R. Rep., at 37, n. 158 ("[T]he availability of a State remedy is tenuous and could vary significantly State to State"); id., at 38 ("[I]f patentees turn to the State courts for alternative forms of relief from patent infringement, the result will be a patchwork of State laws, actually undermining the goal of national uniformity in *645 our patent system"). The need for uniformity in the construction of patent law is undoubtedly important, but that is a factor which belongs to the Article I patent-power calculus, rather than to any determination of whether a state plea of sovereign immunity deprives a patentee of property without due process of law. We have also said that a state actor's negligent act that causes unintended injury to a person's property does not "deprive" that person of property within the meaning of the Due Process Clause. See Daniels v. Williams, 474 U.S. 327, 328 (1986). Actions predicated on direct patent infringement, however, do not require any showing of intent to infringe; instead, knowledge and intent are considered only with respect to damages. See 35 U.S. C. § 271(a) (1994 ed., Supp. III); 5 D. Chisum, Patents § 16.02[2], p. 16-31 (rev. ed. 1998) ("`It is, of course, elementary, that an infringement may be entirely inadvertent and unintentional and without knowledge of the patent' "). Congress did not focus on instances of intentional or reckless infringement on the part of the States. Indeed, the evidence before Congress suggested that most state infringement was innocent or at worst negligent. See S. Rep., at 10 ("`It is not always clear that with all the products that [government] buy[s], that anyone is really aware of the patent status of any particular invention or device or product' "); H. R. Rep., at 39 ("[I]t should be very rare for a court to find . . . willful infringement on the part of a State or State agency"). Such negligent conduct, however, does not violate the Due Process Clause of the Fourteenth Amendment. The legislative record thus suggests that the Patent Remedy Act does not respond to a history of "widespread and persisting deprivation of constitutional rights" of the sort Congress has faced in enacting proper prophylactic § 5 legislation. City of Boerne, 521 U. S., at 526. Instead, Congress appears to have enacted this legislation in response to a handful of instances of state patent infringement that do not *646 necessarily violate the Constitution. Though the lack of support in the legislative record is not determinative, see id., at 531, identifying the targeted constitutional wrong or evil is still a critical part of our § 5 calculus because "[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one," id., at 530. Here, the record at best offers scant support for Congress' conclusion that States were depriving patent owners of property without due process of law by pleading sovereign immunity in federal-court patent actions. Because of this lack, the provisions of the Patent Remedy Act are "so out of proportion to a supposed remedial or preventive object that [they] cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Id., at 532. An unlimited range of state conduct would expose a State to claims of direct, induced, or contributory patent infringement, and the House Report itself cited testimony acknowledging "`it[`]s difficult for us to identify a patented product or process which might not be used by a state.'" H. R. Rep., at 38.[10] Despite subjecting States to this expansive liability, Congress did nothing to limit the coverage of the Act to cases involving arguable constitutional violations, such as where a State refuses to offer any *647 state-court remedy for patent owners whose patents it had infringed. Nor did it make any attempt to confine the reach of the Act by limiting the remedy to certain types of infringement, such as nonnegligent infringement or infringement authorized pursuant to state policy; or providing for suits only against States with questionable remedies or a high incidence of infringement. Instead, Congress made all States immediately amenable to suit in federal court for all kinds of possible patent infringement and for an indefinite duration. Our opinion in City of Boerne discussed with approval the various limits that Congress imposed in its voting rights measures, see 521 U.S., at 532-533, and noted that where "a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5," id., at 533. The Patent Remedy Act's indiscriminate scope offends this principle, and is particularly incongruous in light of the scant support for the predicate unconstitutional conduct that Congress intended to remedy. In sum, it simply cannot be said that "many of [the acts of infringement] affected by the congressional enactment have a significant likelihood of being unconstitutional." Id., at 532. The historical record and the scope of coverage therefore make it clear that the Patent Remedy Act cannot be sustained under § 5 of the Fourteenth Amendment. The examples of States avoiding liability for patent infringement by pleading sovereign immunity in a federal-court patent action are scarce enough, but any plausible argument that such action on the part of the State deprived patentees of property and left them without a remedy under state law is scarcer still. The statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under *648 that regime.[11] These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

In 1992, Congress amended the patent laws and expressly abrogated the States' sovereign immunity from claims of patent infringement Respondent College Savings then sued the State of Florida for patent infringement, and the Court of Appeals held that Congress had validly abrogated the State's sovereign immunity from infringement suits pursuant to its authority under 5 of the Fourteenth Amendment We hold that, under City of the statute cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause, and accordingly reverse the decision of the Court of Appeals I Since 1987, respondent College Savings Bank, a New Jersey chartered savings bank located in Princeton, New Jersey, has marketed and sold certificates of deposit known as the CollegeSure CD, which are essentially annuity contracts for financing future college expenses College Savings obtained *631 a patent for its financing methodology, designed to guarantee investors sufficient funds to cover the costs of tuition for colleges Petitioner Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid) is an entity created by the State of Florida that administers similar tuition prepayment contracts available to Florida residents and their children See Fla Stat 240551(1) College Savings claims that, in the course of administering its tuition prepayment program, Florida Prepaid directly and indirectly infringed College Savings' patent College Savings brought an infringement action under 35 US C 271(a) against Florida Prepaid in the United States District Court for the District of New Jersey in November 1994[1] By the time College Savings filed its suit, Congress had already passed the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35 US C 271(h), 2(a) Before this legislation, the patent laws stated only that "whoever" without authority made, used, or sold a patented invention infringed the patent 35 US C 271(a) (1988 ed)[2] Applying this Court's decision in Atas- *632 cadero State the Federal Circuit had held that the patent laws failed to contain the requisite statement of intent to abrogate state sovereign immunity from infringement suits See, e g, In response to Chew and similar decisions, Congress enacted the Patent Remedy Act to "clarify that States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of and plant variety protections" preamble, ; see also H R Rep No 101-0, pt 1, pp 7, 33 (hereinafter H R Rep); S Rep No 102-280, pp 7, 1, "As 1, 5-6 (1992) (hereinafter S Rep) Section 271(h) now states: used in this section, the term `whoever' includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his official capacity" Section 2(a) addresses the sovereign immunity issue even more specifically: "Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his official capacity, shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person for infringement of a patent under section 271, or for any other violation under this title" Relying on these provisions, College Savings alleged that Florida Prepaid had willfully infringed its patent under *633 271, as well as contributed to and induced infringement College Savings sought declaratory and injunctive relief as well as damages, attorney's fees, and costs After this Court decided of Florida Prepaid moved to dismiss the action on the grounds of sovereign immunity[3] Florida Prepaid argued that the Patent Remedy Act was an unconstitutional attempt by Congress to use its Article I powers to abrogate state sovereign immunity College Savings responded that Congress had properly exercised its power pursuant to 5 of the Fourteenth Amendment to enforce the guarantees of the Due Process Clause in 1 of the Amendment The United States intervened to defend the constitutionality of the statute Agreeing with College Savings, the District Court denied Florida Prepaid's motion to dismiss, and the Federal Circuit affirmed, The Federal Circuit held that Congress had clearly expressed its intent to abrogate the States' immunity from suit in federal court for patent infringement, and that Congress had the power under 5 of the Fourteenth Amendment to do so The court reasoned that are property subject to the protections of the Due Process Clause and that Congress' objective in enacting the Patent Remedy Act was permissible because it sought to prevent States from depriving patent owners of this property without due process See The court rejected Florida Prepaid's argument that it and other States had not deprived patent owners of their property without due process, and refused to "deny Congress the authority to subject all states to suit for patent infringement in the federal courts, regardless of the extent of procedural due process that may exist at any particular time" Finally, *634 the court held that the Patent Remedy Act was a proportionate response to state infringement and an appropriate measure to protect patent owners' property under this Court's decision in City of The court concluded that significant harm results from state infringement of -1354, and "[t]here is no sound reason to hold that Congress cannot subject a state to the same civil consequences that face a private party infringer," We granted certiorari, and now reverse II The Eleventh Amendment provides: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State" As the Court recently explained in at 54: "Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, `we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition which it confirms' That presupposition, first observed over a century ago in has two parts: first, that each State is a sovereign entity in our federal system; and second, that `"[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent"' quoting The Federalist No 81 For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States `was not contemplated by *635 the Constitution when establishing the judicial power of the United States' " Here, College Savings sued the State of Florida in federal court, and it is undisputed that Florida has not expressly consented to suit College Savings and the United States argue that Florida has impliedly waived its immunity under That argument, however, is foreclosed by our decision in the companion case overruling the constructive waiver theory announced in Parden See College Savings Bank v Florida Prepaid Postsecondary Ed Expense Bd, post, p 666 College Savings and the United States nonetheless contend that Congress' enactment of the Patent Remedy Act validly abrogated the States' sovereign immunity To determine the merits of this proposition, we must answer two questions: "first, whether Congress has `unequivocally expresse[d] its intent to abrogate the immunity,' and second, whether Congress has acted `pursuant to a valid exercise of power'" We agree with the parties and the Federal Circuit that in enacting the Patent Remedy Act, Congress has made its intention to abrogate the States' immunity "`unmistakably clear in the language of the statute'" Indeed, Congress' intent to abrogate could not have been any clearer See 35 US C 2(a) ("Any State shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court for infringement of a patent") Whether Congress had the power to compel States to surrender their sovereign immunity for these purposes, however, is another matter Congress justified the Patent Remedy Act under three sources of constitutional authority: the Patent Clause, Art I, 8, cl 8; the Interstate Commerce Clause, Art I, 8, cl 3; and 5 of the Fourteenth Amendment *636 See S Rep, at 7-8; H R Rep, at 39-40[4] In of course, this Court overruled the plurality opinion in our only prior case finding congressional authority to abrogate state sovereign immunity pursuant to an Article I power (the Commerce Clause) -73 makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers; hence the Patent Remedy Act cannot be sustained under either the Commerce Clause or the Patent Clause Ibid The Federal Circuit recognized this, and College Savings and the United States do not contend otherwise Instead, College Savings and the United States argue that the Federal Circuit properly concluded that Congress enacted the Patent Remedy Act to secure the Fourteenth Amendment's protections against deprivations of property without due process of law The Fourteenth Amendment provides in relevant part: "Section 1 No State shall deprive any person of life, liberty, or property, without due process of law "Section 5 The Congress shall have power to enforce, by appropriate legislation, the provisions of this article" While reaffirming the view that state sovereign immunity does not yield to Congress' Article I powers, this Court in *637 also reaffirmed its holding in Fitzpatrick v Bitzer, 427 US 445 that Congress retains the authority to abrogate state sovereign immunity pursuant to the Fourteenth Amendment Our opinion explained that in Fitzpatrick, "we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution" The Court further described Fitzpatrick as holding that "through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment" College Savings and the United States are correct in suggesting that "appropriate" legislation pursuant to the Enforcement Clause of the Fourteenth Amendment could abrogate state sovereignty Congress itself apparently thought the Patent Remedy Act could be so justified: "[T]he bill is justified as an acceptable method of enforcing the provisions of the fourteenth amendment The Court in Lemelson v Ampex Corp [, 372 F Supp 708] recognized that a patent is a form of property, holding that a right to compensation exists for patent infringement Additionally, because courts have continually recognized patent rights as property, the fourteenth amendment prohibits a State from depriving a person of property without due process of law" S Rep, at 8 (footnotes omitted) We have held that "[t]he `provisions of this article,' to which 5 refers, include the Due Process Clause of the Fourteenth Amendment" City of But the legislation must nonetheless be "appropriate" under 5 as that term was construed in City of *638 There, this Court held that the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat 1488, 42 US C 2000bb et seq, exceeded Congress' authority under 5 of the Fourteenth Amendment, insofar as RFRA was made applicable to the States RFRA was enacted "in direct response to" this Court's decision in Employment Div, Dept of Human Resources of Ore v Smith, 494 US 872 which construed the Free Exercise Clause of the First Amendment to hold that "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest" City of Through RFRA, Congress reinstated the compelling governmental interest test eschewed by Smith by requiring that a generally applicable law placing a "substantial burden" on the free exercise of religion must be justified by a "compelling governmental interest" and must employ the "least restrictive means" of furthering that interest 521 US, at 515-516 In holding that RFRA could not be justified as "appropriate" enforcement legislation under 5, the Court emphasized that Congress' enforcement power is "remedial" in nature We recognized that "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into `legislative spheres of autonomy previously reserved to the States'" We also noted, however, that "`[a]s broad as the congressional enforcement power is, it is not unlimited,'" ib and held that "Congress does not enforce a constitutional right by changing what the right is It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation," Canvassing the history of the Fourteenth Amendment and *639 case law examining the propriety of Congress' various voting rights measures,[5] the Court explained: "While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end Lacking such a connection, legislation may become substantive in operation and effect" -520 We thus held that for Congress to invoke 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct RFRA failed to meet this test because there was little support in the record for the concerns that supposedly animated the law And, unlike the measures in the voting rights cases, RFRA's provisions were "so out of proportion to a supposed remedial or preventive object" that RFRA could not be understood "as responsive to, or designed to prevent, unconstitutional behavior" ; see also Can the Patent Remedy Act be viewed as remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners? Following City of we must first identify the Fourteenth Amendment "evil" or "wrong" that Congress intended to remedy, guided *640 by the principle that the propriety of any 5 legislation "`must be judged with reference to the historical experience it reflects'" The underlying conduct at issue here is state infringement of and the use of sovereign immunity to deny patent owners compensation for the invasion of their patent rights See H R Rep, at 3738 ("[P]atent owners are effectively denied a remedy for damages resulting from infringement by a State or State entity"); S Rep, at 6 ("[P]laintiffs in patent infringement cases against a State are foreclosed from damages, regardless of the State conduct") It is this conduct then—unremedied patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act In enacting the Patent Remedy Act, however, Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations Unlike the undisputed record of racial discrimination confronting Congress in the voting rights cases, see City of -527, Congress came up with little evidence of infringing conduct on the part of the States The House Report acknowledged that "many states comply with patent law" and could provide only two examples of patent infringement suits against the States See H R Rep, The Federal Circuit in its opinion identified only eight patent-infringement suits prosecuted against the States in the 110 years between 1880 and 1990 See -1354 Testimony before the House Subcommittee in favor of the bill acknowledged that "states are willing and able to respect patent rights The fact that there are so few reported cases involving patent infringement claims against states underlies the point" Patent Remedy Clarification Act: Hearing on H R 3886 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the House Committee on the Judiciary, 101st Cong, 2d Sess, 56 (hereinafter House Hearings) (statement of William *641 S Thompson); ("[S]tates do occasionally find themselves in patent infringement suits") Even the bill's sponsor conceded that "[w]e do not have any evidence of massive or widespread violation of patent laws by the States either with or without this State immunity" (statement of Rep Kastenmeier)[6] The Senate Report, as well, contains no evidence that unremedied patent infringement by States had become a problem of national import At most, Congress heard testimony that patent infringement by States might increase in the future, see House Hearings 22 (statement of Jeffrey Samuels); ; and acted to head off this speculative harm See H R Rep, College Savings argues that by infringing a patent and then pleading immunity to an infringement suit, a State not only infringes the patent, but deprives the patentee of property without due process of law and "takes" the property in the patent without paying the just compensation required *642 by the Fifth Amendment[7] The United States declines to defend the Act as based on the Just Compensation Clause, but joins in College Savings' defense of the Act as designed to prevent a State from depriving a patentee of property without due process of law Florida Prepaid contends that Congress may not invoke 5 to protect property interests that it has created in the first place under Article I Patents, however, have long been considered a species of property See Brown v Duchesne, 19 How 183, ; cf, Consolidated Fruit-Jar Co v Wright, 94 US 92, As such, they are surely included within the "property" of which no person may be deprived by a State without due process of law And if the Due Process Clause protects we know of no reason why Congress might not legislate against their deprivation without due process under 5 of the Fourteenth Amendment Though may be considered "property" for purposes of our analysis, the legislative record still provides little support for the proposition that Congress sought to remedy a Fourteenth Amendment violation in enacting the Patent Remedy Act The Due Process Clause provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law" U S Const, Amdt 14, 1 (emphasis added) This Court has accordingly held that "[i]n procedural due process claims, the deprivation by *643 state action of a constitutionally protected interest is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law" Zinermon v Burch, 494 US 113, Thus, under the plain terms of the Clause and the clear import of our precedent, a State's infringement of a patent, though interfering with a patent owner's right to exclude others, does not by itself violate the Constitution Instead, only where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent could a deprivation of property without due process result See Parratt v Taylor, 451 US 527, ; Hudson v Palmer, 468 US 517, ; (O'Connor, J, concurring) ("[I]n challenging a property deprivation, the claimant must either avail himself of the remedies guaranteed by state law or prove that the available remedies are inadequate When adequate remedies are provided and followed, no deprivation of property without due process can result") Congress, however, barely considered the availability of state remedies for patent infringement and hence whether the States' conduct might have amounted to a constitutional violation under the Fourteenth Amendment It did hear a limited amount of testimony to the effect that the remedies available in some States were uncertain[8] *644 The primary point made by these witnesses, however, was not that state remedies were constitutionally inadequate, but rather that they were less convenient than federal remedies, and might undermine the uniformity of patent law See, e g, House Hearings 43 ("[U]niformity again dictates that that sovereign immunity is a mistake in this field because of the variance among the State's laws"), ; [9] Congress itself said nothing about the existence or adequacy of state remedies in the statute or in the Senate Report, and made only a few fleeting references to state remedies in the House Report, essentially repeating the testimony of the witnesses See H R Rep, at 37, n 158 ("[T]he availability of a State remedy is tenuous and could vary significantly State to State"); The need for uniformity in the construction of patent law is undoubtedly important, but that is a factor which belongs to the Article I patent-power calculus, rather than to any determination of whether a state plea of sovereign immunity deprives a patentee of property without due process of law We have also said that a state actor's negligent act that causes unintended injury to a person's property does not "deprive" that person of property within the meaning of the Due Process Clause See Daniels v Williams, 474 US 327, Actions predicated on direct patent infringement, however, do not require any showing of intent to infringe; instead, knowledge and intent are considered only with respect to damages See 35 US C 271(a) (1994 ed, Supp III); 5 D Chisum, Patents 1602[2], p 16-31 ("`It is, of course, elementary, that an infringement may be entirely inadvertent and unintentional and without knowledge of the patent' ") Congress did not focus on instances of intentional or reckless infringement on the part of the States Indeed, the evidence before Congress suggested that most state infringement was innocent or at worst negligent See S Rep, at 10 ("`It is not always clear that with all the products that [government] buy[s], that anyone is really aware of the patent status of any particular invention or device or product' "); H R Rep, at 39 ("[I]t should be very rare for a court to find willful infringement on the part of a State or State agency") Such negligent conduct, however, does not violate the Due Process Clause of the Fourteenth Amendment The legislative record thus suggests that the Patent Remedy Act does not respond to a history of "widespread and persisting deprivation of constitutional rights" of the sort Congress has faced in enacting proper prophylactic 5 legislation City of 521 U S, at 526 Instead, Congress appears to have enacted this legislation in response to a handful of instances of state patent infringement that do not *646 necessarily violate the Constitution Though the lack of support in the legislative record is not determinative, see identifying the targeted constitutional wrong or evil is still a critical part of our 5 calculus because "[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one," Here, the record at best offers scant support for Congress' conclusion that States were depriving patent owners of property without due process of law by pleading sovereign immunity in federal-court patent actions Because of this lack, the provisions of the Patent Remedy Act are "so out of proportion to a supposed remedial or preventive object that [they] cannot be understood as responsive to, or designed to prevent, unconstitutional behavior" An unlimited range of state conduct would expose a State to claims of direct, induced, or contributory patent infringement, and the House Report itself cited testimony acknowledging "`it[`]s difficult for us to identify a patented product or process which might not be used by a state'" H R Rep, [10] Despite subjecting States to this expansive liability, Congress did nothing to limit the coverage of the Act to cases involving arguable constitutional violations, such as where a State refuses to offer any *647 state-court remedy for patent owners whose it had infringed Nor did it make any attempt to confine the reach of the Act by limiting the remedy to certain types of infringement, such as nonnegligent infringement or infringement authorized pursuant to state policy; or providing for suits only against States with questionable remedies or a high incidence of infringement Instead, Congress made all States immediately amenable to suit in federal court for all kinds of possible patent infringement and for an indefinite duration Our opinion in City of discussed with approval the various limits that Congress imposed in its voting rights measures, see 521 US, -533, and noted that where "a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under 5," The Patent Remedy Act's indiscriminate scope offends this principle, and is particularly incongruous in light of the scant support for the predicate unconstitutional conduct that Congress intended to remedy In sum, it simply cannot be said that "many of [the acts of infringement] affected by the congressional enactment have a significant likelihood of being unconstitutional" The historical record and the scope of coverage therefore make it clear that the Patent Remedy Act cannot be sustained under 5 of the Fourteenth Amendment The examples of States avoiding liability for patent infringement by pleading sovereign immunity in a federal-court patent action are scarce enough, but any plausible argument that such action on the part of the State deprived patentees of property and left them without a remedy under state law is scarcer still The statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under *648 that regime[11] These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion It is so ordered

Justice Blackmun

dissenting

Robertson v. Wegmann

https://www.courtlistener.com/opinion/109877/robertson-v-wegmann/

https://www.courtlistener.com/api/rest/v3/clusters/109877/

1977-099

It is disturbing to see the Court, in this decision, although almost apologetically self-described as "a narrow one," ante, at 594, cut back on what is acknowledged, ante, at 590, to be the "broad sweep" of 42 U.S. C. § 1983. Accordingly, I dissent. I do not read the emphasis of § 1988, as the Court does, ante, at 585 and 593-594, n. 11, to the effect that the Federal District Court "was required to adopt" the Louisiana statute, and was free to look to federal common law only as a secondary matter. It seems to me that this places the cart before the horse. Section 1988 requires the utilization of federal law ("shall be exercised and enforced in conformity with the laws of the United States"). It authorizes resort to the state statute only if the federal laws "are not adapted to the object" of "protection of all persons in the United States in their civil rights, and for their vindication" or are "deficient in the provisions necessary to furnish suitable remedies and punish offenses against law." Even then, state statutes are an alternative source of law only if "not inconsistent with the Constitution and laws of the United States." Surely, federal law is the rule and not the exception. Accepting this as the proper starting point, it necessarily follows, it seems to me, that the judgment of the Court of Appeals must be affirmed, not reversed. To be sure, survivorship of a civil rights action under § 1983 upon the death of either party is not specifically covered by the federal statute. But that does not mean that "the laws of the United States" are not "suitable" or are "not adapted to the object" or are "deficient in the provisions necessary." The federal law and *596 the underlying federal policy stand bright and clear. And in the light of that brightness and of that clarity, I see no need to resort to the myriad of state rules governing the survival of state actions. First. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), a case that concerned the availability of compensatory damages for a violation of § 1982, a remedial question, as here, not governed explicitly by any federal statute other than § 1988, Mr. Justice Douglas, writing for the Court, painted with a broad brush the scope of the federal court's choice-of-law authority: "[A]s we read § 1988, . . . both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." 396 U.S., at 240 (emphasis added). The Court's present reading of § 1988 seems to me to be hyperlogical and sadly out of line with the precept set forth in that quoted material. The statute was intended to give courts flexibility to shape their procedures and remedies in accord with the underlying policies of the Civil Rights Acts, choosing whichever rule "better serves" those policies (emphasis added). I do not understand the Court to deny a federal court's authority under § 1988 to reject state law when to apply it seriously undermines substantial federal concerns. But I do not accept the Court's apparent conclusion that, absent such an extreme inconsistency, § 1988 restricts courts to state law on matters of procedure and remedy. That conclusion too often would interfere with the efficient redress of constitutional rights. Second. The Court's reading of § 1988 cannot easily be squared with its treatment of the problems of immunity and damages under the Civil Rights Acts. Only this Term, in *597 Carey v. Piphus, 435 U.S. 247 (1978), the Court set a rule for the award of damages under § 1983 for deprivation of procedural due process by resort to "federal common law." Though the case arose from Illinois, the Court did not feel compelled to inquire into Illinois' statutory or decisional law of damages, nor to test that law for possible "inconsistency" with the federal scheme, before embracing a federal common-law rule. Instead, the Court fashioned a federal damages rule, from common-law sources and its view of the type of injury, to govern such cases uniformly State to State. 435 U.S., at 257-259, and n. 13. Similarly, in constructing immunities under § 1983, the Court has consistently relied on federal common-law rules. As Carey v. Piphus recognizes, id., at 258 n. 13, in attributing immunity to prosecutors, Imbler v. Pachtman, 424 U.S. 409, 417-419 (1976); to judges, Pierson v. Ray, 386 U.S. 547, 554-555 (1967); and to other officials, matters on which the language of § 1983 is silent, we have not felt bound by the tort immunities recognized in the particular forum State and, only after finding an "inconsistency" with federal standards, then considered a uniform federal rule. Instead, the immunities have been fashioned in light of historic common-law concerns and the policies of the Civil Rights Acts.[1] Third. A flexible reading of § 1988, permitting resort to a federal rule of survival because it "better serves" the policies of the Civil Rights Acts, would be consistent with the methodology employed in the other major choice-of-law provision in the federal structure, namely, the Rules of Decision Act. 28 *598 U. S. C. § 1652.[2] That Act provides that state law is to govern a civil trial in a federal court "except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide." The exception has not been interpreted in a crabbed or wooden fashion, but, instead, has been used to give expression to important federal interests. Thus, for example, the exception has been used to apply a federal common law of labor contracts in suits under § 301 (a) of the Labor Management Relations Act, 1947, 29 U.S. C. § 185 (a), Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957); to apply federal common law to transactions in commercial paper issued by the United States where the United States is a party, Clearfield Trust Co. v. United States, 318 U.S. 363 (1943); and to avoid application of governing state law to the reservation of mineral rights in a land acquisition agreement to which the United States was a party and that bore heavily upon a federal wildlife regulatory program, United States v. Little Lake Misere Land Co., 412 U.S. 580 (1973). See also Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 709 (1966): "[S]tate law is applied [under the Rules of Decision Act] only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires." (WHITE, J., dissenting.) Just as the Rules of Decision Act cases disregard state law where there is conflict with federal policy, even though no explicit conflict with the terms of a federal statute, so, too, state remedial and procedural law must be disregarded under § 1988 where that law fails to give adequate expression to important federal concerns. See Sullivan v. Little Hunting Park, Inc., supra. The opponents of the 1866 Act were distinctly aware that the legislation that became § 1988 would *599 give the federal courts power to shape federal common-law rules. See, for example, the protesting remarks of Congressman Kerr relative to § 3 of the 1866 Act (which contained the predecessor version of § 1988): "I might go on and in this manner illustrate the practical working of this extraordinary measure. . . . [T]he authors of this bill feared, very properly too, that the system of laws heretofore administered in the Federal courts might fail to supply any precedent to guide the courts in the enforcement of the strange provisions of this bill, and not to be thwarted by this difficulty, they confer upon the courts the power of judicial legislation, the power to make such other laws as they may think necessary. Such is the practical effect of the last clause of the third section [of § 1988] . . . . "That is to say, the Federal courts may, in such cases, make such rules and apply such law as they please, and call it common law" (emphasis in original). Cong. Globe, 39th Cong., 1st Sess., 1271 (1866). Fourth. Section 1983's critical concerns are compensation of the victims of unconstitutional action, and deterrence of like misconduct in the future. Any crabbed rule of survivorship obviously interferes directly with the second critical interest and may well interfere with the first. The unsuitability of Louisiana's law is shown by the very case at hand. It will happen not infrequently that a decedent's only survivor or survivors are nonrelatives or collateral relatives who do not fit within the four named classes of Louisiana statutory survivors. Though the Court surmises, ante, at 591-592, that "surely few persons are not survived" by a spouse, children, parents, or siblings, any lawyer who has had experience in estate planning or in probating estates knows that that situation is frequently encountered. The Louisiana survivorship rule applies no matter how malicious or ill-intentioned a defendant's action was. In this case, as *600 the Court acknowledges, ante, at 586 n. 2, the District Court found that defendant Garrison brought state perjury charges against plaintiff Shaw "in bad faith and for purposes of harassment," 328 F. Supp. 390, 400, a finding that the Court of Appeals affirmed as not clearly erroneous. 467 F.2d 113, 122. The federal interest in specific deterrence, when there was malicious intention to deprive a person of his constitutional rights, is particularly strong, as Carey v. Piphus intimates, 435 U.S., at 257 n. 11. Insuring a specific deterrent under federal law gains importance from the very premise of the Civil Rights Act that state tort policy often is inadequate to deter violations of the constitutional rights of disfavored groups. The Louisiana rule requiring abatement appears to apply even where the death was intentional and caused, say, by a beating delivered by a defendant. The Court does not deny this result, merely declaiming, ante, at 594, that in such a case it might reconsider the applicability of the Louisiana survivorship statute. But the Court does not explain how either certainty or federalism is served by such a variegated application of the Louisiana statute, nor how an abatement rule would be workable when made to depend on a fact of causation often requiring an entire trial to prove. It makes no sense to me to make even a passing reference, ante, at 592, to behavioral influence. The Court opines that no official aware of the intricacies of Louisiana survivorship law would "be influenced in his behavior by its provisions." But the defendants in Shaw's litigation obviously have been "sweating it out" through the several years of proceedings and litigation in this case. One can imagine the relief occasioned when the realization dawned that Shaw's death might—just might—abate the action. To that extent, the deterrent against behavior such as that attributed to the defendants in this case surely has been lessened. As to compensation, it is no answer to intimate, as the Court *601 does, ante, at 591-592, that Shaw's particular survivors were not personally injured, for obviously had Shaw been survived by parents or siblings, the cause of action would exist despite the absence in them of so deep and personal an affront, or any at all, as Shaw himself was alleged to have sustained. The Court propounds the unreasoned conclusion, ibid., that the "goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased's estate." But the Court does not purport to explain why it is consistent with the purposes of § 1983 to recognize a derivative or independent interest in a brother or parent, while denying similar interest to a nephew, grandparent, or legatee. Fifth. The Court regards the Louisiana system's structuring of survivorship rights as not unreasonable. Ante, at 592. The observation, of course, is a gratuitous one, for as the Court immediately observes, id., at 592 n. 8, it does not resolve the issue that confronts us here. We are not concerned with the reasonableness of the Louisiana survivorship statute in allocating tort recoveries. We are concerned with its application in the face of a claim of civil rights guaranteed the decedent by federal law. Similarly, the Court's observation that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. §§ 908 (d), 909 (d) (1970 ed., Supp. V), and Federal Employers' Liability Act, 45 U.S. C. § 59, limit survival to specific named relatives or dependents (albeit a larger class of survivors than the Louisiana statute allows) is gratuitous. Those statutes have as their main purpose loss shifting and compensation, rather than deterrence of unconstitutional conduct. And, although the Court does not mention it, any reference to the survival rule provided in 42 U.S. C. § 1986 governing that statute's principle of vicarious liability, would be off point. There it was the extraordinary character of the liability created by § 1986, of failing to prevent wrongful acts, that apparently induced Congress to limit recovery to *602 widows or next of kin in a specified amount of statutory damages. Cf. Cong. Globe, 42d Cong., 1st Sess., 749-752, 756-763 (1871); Moor v. County of Alameda, 411 U. S., at 710 n. 26. The Court acknowledges, ante, at 590, "the broad sweep of § 1983," but seeks to justify the application of a rule of nonsurvivorship here because it feels that Louisiana is comparatively generous as to survivorship anyway. This grudging allowance of what the Louisiana statute does not give, just because it gives in part, seems to me to grind adversely against the statute's "broad sweep." Would the Court's decision be otherwise if actions for defamation and malicious prosecution in fact did not survive at all in Louisiana? The Court by omission admits, ante, at 591, and n. 6, that that question of survival has not been litigated in Louisiana. See Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La. L. Rev. 1, 6 n. 23 (1976). Defamation and malicious prosecution actions wholly abate upon the death of the plaintiff in a large number of States, see ante, at 591, and n. 6. Does it make sense to apply a federal rule of survivorship in those States while preserving a different state rule, stingier than the federal rule, in Louisiana? Sixth. A federal rule of survivorship allows uniformity, and counsel immediately know the answer. Litigants identically aggrieved in their federal civil rights, residing in geographically adjacent States, will not have differing results due to the vagaries of state law. Litigants need not engage in uncertain characterization of a § 1983 action in terms of its nearest tort cousin, a questionable procedure to begin with, since the interests protected by tort law and constitutional law may be quite different. Nor will federal rights depend on the arcane intricacies of state survival law—which differs in Louisiana according to whether the right is "strictly personal," La. Code Civ. Proc. Ann., Art. 428 (West 1960); whether the action concerns property damage, La. Civ. Code Ann., Art. 2315, ¶ 2 *603 (West 1971); or whether it concerns "other damages," id., ¶ 3. See 37 La. L. Rev., at 52. The policies favoring so-called "absolute" survivorship, viz., survivorship in favor of a decedent's nonrelated legatees in the absence of familial legatees, are the simple goals of uniformity, deterrence, and perhaps compensation. A defendant who has violated someone's constitutional rights has no legitimate interest in a windfall release upon the death of the victim. A plaintiff's interest in certainty, in an equal remedy, and in deterrence supports such an absolute rule. I regard as unanswered the justifications advanced by the District Court and the Court of Appeals: uniformity of decisions and fulfillment of the great purposes of § 1983. 391 F. Supp., at 1359, 1363-1365; 545 F.2d, at 983. Seventh. Rejecting Louisiana's survivorship limitations does not mean that state procedure and state remedies will cease to serve as important sources of civil rights law. State law, for instance, may well be a suitable source of statutes of limitation, since that is a rule for which litigants prudently can plan. Rejecting Louisiana's survivorship limitations means only that state rules are subject to some scrutiny for suitability. Here the deterrent purpose of § 1983 is disserved by Louisiana's rule of abatement. It is unfortunate that the Court restricts the reach of § 1983 by today's decision construing § 1988. Congress now must act again if the gap in remedy is to be filled.

It is disturbing to see the Court, in this decision, although almost apologetically self-described as "a narrow one," ante, at 594, cut back on what is acknowledged, ante, at 590, to be the "broad sweep" of 42 U.S. C. Accordingly, I dissent. I do not read the emphasis of 1988, as the Court does, ante, at 585 and 593-594, n. 11, to the effect that the Federal District Court "was required to adopt" the Louisiana statute, and was free to look to federal common law only as a secondary matter. It seems to me that this places the cart before the horse. Section 1988 requires the utilization of federal law ("shall be exercised and enforced in conformity with the laws of the United States"). It authorizes resort to the state statute only if the federal laws "are not adapted to the object" of "protection of all persons in the United States in their civil rights, and for their vindication" or are "deficient in the provisions necessary to furnish suitable remedies and punish offenses against law." Even then, state statutes are an alternative source of law only if "not inconsistent with the Constitution and laws of the United States." Surely, federal law is the rule and not the exception. Accepting this as the proper starting point, it necessarily follows, it seems to me, that the judgment of the Court of Appeals must be affirmed, not reversed. To be sure, survivorship of a civil rights action under 1983 upon the death of either party is not specifically covered by the federal statute. But that does not mean that "the laws of the United States" are not "suitable" or are "not adapted to the object" or are "deficient in the provisions necessary." The federal law and *596 the underlying federal policy stand bright and clear. And in the light of that brightness and of that clarity, I see no need to resort to the myriad of state rules governing the survival of state actions. First. In a case that concerned the availability of compensatory damages for a violation of 1982, a remedial question, as here, not governed explicitly by any federal statute other than 1988, Mr. Justice Douglas, writing for the Court, painted with a broad brush the scope of the federal court's choice-of-law authority: "[A]s we read 1988, both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." The Court's present reading of 1988 seems to me to be hyperlogical and sadly out of line with the precept set forth in that quoted material. The statute was intended to give courts flexibility to shape their procedures and remedies in accord with the underlying policies of the Civil Rights Acts, choosing whichever rule "better serves" those policies I do not understand the Court to deny a federal court's authority under 1988 to reject state law when to apply it seriously undermines substantial federal concerns. But I do not accept the Court's apparent conclusion that, absent such an extreme inconsistency, 1988 restricts courts to state law on matters of procedure and remedy. That conclusion too often would interfere with the efficient redress of constitutional rights. Second. The Court's reading of 1988 cannot easily be squared with its treatment of the problems of immunity and damages under the Civil Rights Acts. Only this Term, in *597 the Court set a rule for the award of damages under 1983 for deprivation of procedural due process by resort to "federal common law." Though the case arose from Illinois, the Court did not feel compelled to inquire into Illinois' statutory or decisional law of damages, nor to test that law for possible "inconsistency" with the federal scheme, before embracing a federal common-law rule. Instead, the Court fashioned a federal damages rule, from common-law sources and its view of the type of injury, to govern such cases uniformly State to State. -259, and n. 13. Similarly, in constructing immunities under 1983, the Court has consistently relied on federal common-law rules. As recognizes, at 258 n. 13, in attributing immunity to prosecutors, ; to judges, ; and to other officials, matters on which the language of 1983 is silent, we have not felt bound by the tort immunities recognized in the particular forum State and, only after finding an "inconsistency" with federal standards, then considered a uniform federal rule. Instead, the immunities have been fashioned in light of historic common-law concerns and the policies of the Civil Rights Acts.[1] Third. A flexible reading of 1988, permitting resort to a federal rule of survival because it "better serves" the policies of the Civil Rights Acts, would be consistent with the methodology employed in the other major choice-of-law provision in the federal structure, namely, the Rules of Decision Act. 28 *598 U. S. C. 1652.[2] That Act provides that state law is to govern a civil trial in a federal court "except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide." The exception has not been interpreted in a crabbed or wooden fashion, but, instead, has been used to give expression to important federal interests. Thus, for example, the exception has been used to apply a federal common law of labor contracts in suits under 301 (a) of the Labor Management Relations Act, 1947, 29 U.S. C. 185 (a), Textile ; to apply federal common law to transactions in commercial paper issued by the United States where the United States is a party, Clearfield Trust ; and to avoid application of governing state law to the reservation of mineral rights in a land acquisition agreement to which the United States was a party and that bore heavily upon a federal wildlife regulatory program, United See also Auto : "[S]tate law is applied [under the Rules of Decision Act] only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires." (WHITE, J., dissenting.) Just as the Rules of Decision Act cases disregard state law where there is conflict with federal policy, even though no explicit conflict with the terms of a federal statute, so, too, state remedial and procedural law must be disregarded under 1988 where that law fails to give adequate expression to important federal concerns. See The opponents of the 1866 Act were distinctly aware that the legislation that became 1988 would *599 give the federal courts power to shape federal common-law rules. See, for example, the protesting remarks of Congressman Kerr relative to 3 of the 1866 Act (which contained the predecessor version of 1988): "I might go on and in this manner illustrate the practical working of this extraordinary measure. [T]he authors of this bill feared, very properly too, that the system of laws heretofore administered in the Federal courts might fail to supply any precedent to guide the courts in the enforcement of the strange provisions of this bill, and not to be thwarted by this difficulty, they confer upon the courts the power of judicial legislation, the power to make such other laws as they may think necessary. Such is the practical effect of the last clause of the third section [of 1988] "That is to say, the Federal courts may, in such cases, make such rules and apply such law as they please, and call it common law" (emphasis in original). Cong. Globe, 39th Cong., 1st Sess., 1271 (1866). Fourth. Section 1983's critical concerns are compensation of the victims of unconstitutional action, and deterrence of like misconduct in the future. Any crabbed rule of survivorship obviously interferes directly with the second critical interest and may well interfere with the first. The unsuitability of Louisiana's law is shown by the very case at hand. It will happen not infrequently that a decedent's only survivor or survivors are nonrelatives or collateral relatives who do not fit within the four named classes of Louisiana statutory survivors. Though the Court surmises, ante, at 591-592, that "surely few persons are not survived" by a spouse, children, parents, or siblings, any lawyer who has had experience in estate planning or in probating estates knows that that situation is frequently encountered. The Louisiana survivorship rule applies no matter how malicious or ill-intentioned a defendant's action was. In this case, as *600 the Court acknowledges, ante, at 586 n. 2, the District Court found that defendant Garrison brought state perjury charges against plaintiff Shaw "in bad faith and for purposes of harassment," a finding that the Court of Appeals affirmed as not clearly erroneous. The federal interest in specific deterrence, when there was malicious intention to deprive a person of his constitutional rights, is particularly strong, as n. 11. Insuring a specific deterrent under federal law gains importance from the very premise of the Civil Rights Act that state tort policy often is inadequate to deter violations of the constitutional rights of disfavored groups. The Louisiana rule requiring abatement appears to apply even where the death was intentional and caused, say, by a beating delivered by a defendant. The Court does not deny this result, merely declaiming, ante, at 594, that in such a case it might reconsider the applicability of the Louisiana survivorship statute. But the Court does not explain how either certainty or federalism is served by such a variegated application of the Louisiana statute, nor how an abatement rule would be workable when made to depend on a fact of causation often requiring an entire trial to prove. It makes no sense to me to make even a passing reference, ante, at 592, to behavioral influence. The Court opines that no official aware of the intricacies of Louisiana survivorship law would "be influenced in his behavior by its provisions." But the defendants in Shaw's litigation obviously have been "sweating it out" through the several years of proceedings and litigation in this case. One can imagine the relief occasioned when the realization dawned that Shaw's death might—just might—abate the action. To that extent, the deterrent against behavior such as that attributed to the defendants in this case surely has been lessened. As to compensation, it is no answer to intimate, as the Court *601 does, ante, at 591-592, that Shaw's particular survivors were not personally injured, for obviously had Shaw been survived by parents or siblings, the cause of action would exist despite the absence in them of so deep and personal an affront, or any at all, as Shaw himself was alleged to have sustained. The Court propounds the unreasoned conclusion, ib that the "goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased's estate." But the Court does not purport to explain why it is consistent with the purposes of 1983 to recognize a derivative or independent interest in a brother or parent, while denying similar interest to a nephew, grandparent, or legatee. Fifth. The Court regards the Louisiana system's structuring of survivorship rights as not unreasonable. Ante, at 592. The observation, of course, is a gratuitous one, for as the Court immediately observes, at 592 n. 8, it does not resolve the issue that confronts us here. We are not concerned with the reasonableness of the Louisiana survivorship statute in allocating tort recoveries. We are concerned with its application in the face of a claim of civil rights guaranteed the decedent by federal law. Similarly, the Court's observation that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. 908 (d), 909 (d) (1970 ed., Supp. V), and Federal Employers' Liability Act, 45 U.S. C. 59, limit survival to specific named relatives or dependents (albeit a larger class of survivors than the Louisiana statute allows) is gratuitous. Those statutes have as their main purpose loss shifting and compensation, rather than deterrence of unconstitutional conduct. And, although the Court does not mention it, any reference to the survival rule provided in 42 U.S. C. 1986 governing that statute's principle of vicarious liability, would be off point. There it was the extraordinary character of the liability created by 1986, of failing to prevent wrongful acts, that apparently induced Congress to limit recovery to *602 widows or next of kin in a specified amount of statutory damages. Cf. Cong. Globe, 42d Cong., 1st Sess., 749-752, 756-763 (1871); Moor v. County of n. 26. The Court acknowledges, ante, at 590, "the broad sweep of 1983," but seeks to justify the application of a rule of nonsurvivorship here because it feels that Louisiana is comparatively generous as to survivorship anyway. This grudging allowance of what the Louisiana statute does not give, just because it gives in part, seems to me to grind adversely against the statute's "broad sweep." Would the Court's decision be otherwise if actions for defamation and malicious prosecution in fact did not survive at all in Louisiana? The Court by omission admits, ante, at 591, and n. 6, that that question of survival has not been litigated in Louisiana. See Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 6 n. 23 Defamation and malicious prosecution actions wholly abate upon the death of the plaintiff in a large number of States, see ante, at 591, and n. 6. Does it make sense to apply a federal rule of survivorship in those States while preserving a different state rule, stingier than the federal rule, in Louisiana? Sixth. A federal rule of survivorship allows uniformity, and counsel immediately know the answer. Litigants identically aggrieved in their federal civil rights, residing in geographically adjacent States, will not have differing results due to the vagaries of state law. Litigants need not engage in uncertain characterization of a 1983 action in terms of its nearest tort cousin, a questionable procedure to begin with, since the interests protected by tort law and constitutional law may be quite different. Nor will federal rights depend on the arcane intricacies of state survival law—which differs in Louisiana according to whether the right is "strictly personal," La. Code Civ. Proc. Ann., Art. 428 (West 1960); whether the action concerns property damage, La. Civ. Code Ann., Art. 2315, ¶ 2 *603 (West 1971); or whether it concerns "other damages," See The policies favoring so-called "absolute" survivorship, viz., survivorship in favor of a decedent's nonrelated legatees in the absence of familial legatees, are the simple goals of uniformity, deterrence, and perhaps compensation. A defendant who has violated someone's constitutional rights has no legitimate interest in a windfall release upon the death of the victim. A plaintiff's interest in certainty, in an equal remedy, and in deterrence supports such an absolute rule. I regard as unanswered the justifications advanced by the District Court and the Court of Appeals: uniformity of decisions and fulfillment of the great purposes of 1363-1365; Seventh. Rejecting Louisiana's survivorship limitations does not mean that state procedure and state remedies will cease to serve as important sources of civil rights law. State law, for instance, may well be a suitable source of statutes of limitation, since that is a rule for which litigants prudently can plan. Rejecting Louisiana's survivorship limitations means only that state rules are subject to some scrutiny for suitability. Here the deterrent purpose of 1983 is disserved by Louisiana's rule of abatement. It is unfortunate that the Court restricts the reach of 1983 by today's decision construing 1988. Congress now must act again if the gap in remedy is to be filled.