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Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | allocates to Congress the powers “[t]o regulate Commerce with foreign Nations,” “[t]o estab- lish an uniform Rule of Naturalization,” “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and “[t]o de- clare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Art. I, For his part, the President has certain express powers relating to foreign affairs, including the powers, “by and with the Advice and Consent of the Senate,” to “appoint Ambassadors,” and “to make Treaties, provided two thirds of the Senators present concur.” Art. II, He is also assigned certain duties with respect to foreign affairs, including serving as “Commander in Chief of the Army and Navy of the United States,” ib and “receiv[ing] Ambassadors and other public Ministers,” Art. II, These specific allocations, however, cannot account for the entirety of the foreign affairs powers exercised by the Cite as: 576 U. S. (2015) 3 Opinion of THOMAS, J. Federal Government. Neither of the political branches is expressly authorized, for instance, to communicate with foreign ministers, to issue passports, or to repel sudden attacks. Yet the President has engaged in such conduct, with the support of Congress, since the earliest days of the Republic. Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 1, 298–346 (2001) (Pra- kash & Ramsey). The President’s longstanding practice of exercising unenumerated foreign affairs powers reflects a constitu- tional directive that “the President ha[s] primary respon- sibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” Specifically, the Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States.” Art. II, This Clause is notably different from the Vesting Clause of Article I, which provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, (emphasis added). By omitting the words “herein granted” in Article II, the Constitution indicates that the “executive Power” vested in the Presi- dent is not confined to those powers expressly identified in the document. Instead, it includes all powers originally understood as falling within the “executive Power” of the Federal Government. B Founding-era evidence reveals that the “executive Power” included the foreign affairs powers of a sovereign State. See Prakash & Ramsey 253. John Locke’s 17th- century writings laid the groundwork for this understand- ing of executive power. Locke described foreign affairs powers—including the powers of “war and peace, leagues and alliances, and all |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | powers of “war and peace, leagues and alliances, and all the transactions with all persons 4 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. and communities without the commonwealth”—as “federa- tive” power. Second Treatise of Civil Government 46, p. 73 (J. Gough ed. 1947). He defined the “executive” power as “comprehending the execution of the municipal laws of the society within itself upon all that are parts of it.” 47, at 73. Importantly, however, Locke explained that the federative and executive powers must be lodged to- gether, lest “disorder and ruin” erupt from the division of the “force of the public.” 48, at 73–74. Subsequent thinkers began to refer to both of these powers as aspects of “executive power.” William Black- stone, for example, described the executive power in Eng- land as including foreign affairs powers, such as the “power of sending embassadors to foreign states, and receiv- ing embassadors at home”; making “treaties, leagues, and alliances with foreign states and princes”; “making war and peace”; and “issu[ing] letters of marque and reprisal.” 1 Commentaries on the Laws of England 245, 249, 250, 242–252 (1765) (Blackstone). Baron de Montesquieu similarly described executive power as including the power to “mak[e] peace or war, sen[d] or receiv[e] embassies, establis[h] the public security, and provid[e] against inva- sions.” The Spirit of the Laws bk. XI, ch. 6, p. 151 (O. Piest ed., T. Nugent transl. 1949). In fact, “most writers of [Montesquieu’s] tim[e] w[ere] inclined to think of the executive branch of government as being concerned nearly entirely with foreign affairs.” W. Gwyn, The Meaning of the Separation of Powers 103 (1965). That understanding of executive power prevailed in America. Following independence, Congress assumed control over foreign affairs under the Articles of Confeder- ation. See, e.g., Articles of Confederation, Art. IX, cl. 1. At that time, many understood that control to be an exercise of executive power. See Prakash & Ramsey 272, 275–278. Letters among Members of the Continental Congress, for instance, repeatedly referred to the Department of Foreign Cite as: 576 U. S. (2015) 5 Opinion of THOMAS, J. Affairs, established under the control of the Continental Congress, as an “Executive departmen[t]” and to its offic- ers as “ ‘Executives or Ministers.’ ” and nn. 194–196. Similarly, the Essex Result of 1778—an influen- tial report on the proposed Constitution for Massachu- setts—described executive power as including both “exter- nal” and “internal” powers: The external executive power “comprehends war, peace, the sending and receiving am- bassadors, and whatever concerns the transactions of the state with any other independent state,” while the inter- nal executive |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | with any other independent state,” while the inter- nal executive power “is employed in the peace, security and protection of the subject and his property.” Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, pp. 324, 337 (O. Handlin & M. Handlin eds. 1966). This view of executive power was widespread at the time of the framing of the Constitution. Thomas Ruther- forth’s Institutes of Natural Law—a treatise routinely cited by the Founders, McDowell, The Limits of Natural Law: Thomas Rutherforth and the American Legal Tradi- tion, and n. 10 (1992)—explained that “external executive power” includes “not only what is properly called military power, but the power likewise of making war or peace, the power of engaging in alliances for an encrease of strength, the power of entering into treaties, and of making leagues to restore peace and the power of adjusting the rights of a nation in respect of navigation, trade, etc.,” 2 Institutes of Natural Law 55–56, 54–61 (1756). During the ratification debates, James Wilson likewise referred to the “executive powers of gov- ernment” as including the external powers of a nation. 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 500–502 (1863). And Alexander Hamilton, writing as Publius, asserted that “[t]he actual conduct of foreign negotiations,” “the arrangement of the army and navy, the directions of the 6 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. operations of war and other matters of a like nature” are “executive details” that “fal[l] peculiarly within the province of the executive department.” The Federalist No. 72, pp. 435–436 (C. Rossiter ed. 1961). Given this pervasive view of executive power, it is un- surprising that those who ratified the Constitution under- stood the “executive Power” vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution. James Iredell, for example, told the North Carolina ratifying convention that, under the new Consti- tution, the President would “regulate all intercourse with foreign powers” and act as the “primary agent” of the United States, though no specific allocation of foreign affairs powers in the document so provided. 4 Elliot, And Alexander Hamilton presumed as much when he argued that the “[e]nergy” created in the Constitution’s Executive would be “essential to the protec- tion of the community against foreign attacks,” even though no specific allocation of foreign affairs powers provided for the Executive to repel such assaults. See The Federalist No. 70, p. 4. These statements confirm that the “executive Power” vested in the President by |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | confirm that the “executive Power” vested in the President by Article II includes the residual foreign affairs powers of the Federal Government not otherwise allocated by the Constitution.1 C Early practice of the founding generation also supports this understanding of the “executive Power.” Upon taking office, President Washington assumed the role of chief diplomat; began to direct the Secretary of Foreign Affairs who, under the Articles of Confederation, had reported to —————— 1 This discussion of the allocation of federal foreign affairs powers should not be understood to address the allocation of foreign affairs powers between the Federal Government and the States. The extent to which the States retained foreign affairs powers following ratification is not before us today. Cite as: 576 U. S. (2015) 7 Opinion of THOMAS, J. the Congress; and established the foreign policy of the United States. Prakash & Ramsey 296–297. At the same time, he respected Congress’ prerogatives to declare war, regulate foreign commerce, and appropriate funds. 6. For its part, Congress recognized a broad Presidential role in foreign affairs. 7–298. It created an “Executive department” called the “Department of Foreign Affairs,” with a Secretary wholly subordinate to the Presi- dent. An Act for Establishing an Executive Department, to be denominated the Department of Foreign Affairs, 1 Stat. 28. The enabling Act provided that the Secretary was to “perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President,” including those “relative to correspondences, commissions or instructions to or with public ministers or consuls, from the United States, or to negotiations with public ministers from foreign states or princes, or to me- morials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs.” By referring to those duties as those “the President of the United States shall assign to the said department,” ib the Act presumed the Presi- dent inherently possessed power to engage in those tasks. Subsequent interactions between President Washington and Congress indicated that the parties involved believed the Constitution vested the President with authority to regulate dealings with foreign nations. In his first State of the Union Address, President Washington told Congress that “[t]he interests of the United States require, that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect.” First Annual Message (Jan. 8, 1790), in George Washington: A Collection 467, 468 (W. Allen ed. 1988). To that end, he asked for compensation for employees and a fund designated for |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | asked for compensation for employees and a fund designated for “defraying the expenses incident to 8 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. the conduct of our foreign affairs.” Congress re- sponded by passing “An Act providing the means of inter- course between the United States and foreign nations.” Ch. 22, During the congressional debate over that bill, the President sought an opinion from Thomas Jefferson—at that time, Secretary of State—about the scope of the Sen- ate’s power in this area. Jefferson responded that “[t]he transaction of business with foreign nations is executive altogether.” Opinion on the Powers of the Senate (Apr. 24, 1790), in 5 Writings of Thomas Jefferson 161 (P. Ford ed. 1895). As such, Jefferson concluded that it properly be- longed “to the head” of the executive department, “except as to such portions of it as are specially submitted to the senate.” According to Washington’s diaries, he received similar advice from John Jay and James Madison about “the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls.” 6 The Diaries of George Washington 68 (D. Jackson & D. Twohig eds. 1979). All agreed that the Senate lacked a “Constitutional right to interfere with either, & that it might be impolitic to draw it into a precedent their powers extending no farther than to an approbation or disapprobation of the person nomi- nated by the President all the rest being Executive and vested in the President by the Constitution.” Washington followed this advice. He corresponded directly with U. S. ministers, moved them among coun- tries, and removed them from their positions at will. Prakash & Ramsey 308–309. He also corresponded with foreign leaders, representing that his role as the “ ‘su- preme executive authority’ ” authorized him to receive and respond to their letters on behalf of the United States. 17. When foreign ministers addressed their communi- cations to Congress, he informed them of their error. 21. Cite as: 576 U. S. (2015) 9 Opinion of THOMAS, J. Washington’s control over foreign affairs extended beyond communications with other governments. When confronted with the question whether to recognize the French Republic as the lawful government of France, he received the French Republic’s emissary without the in- volvement of Congress. When he later con- cluded that the emissary had acted inappropriately, he again acted without the involvement of Congress to ask the French executive to recall him. 14–315. Washington also declared neutrality on behalf of the United States during the war between England and France in |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | United States during the war between England and France in 1793, see Proclamation of Neutrality (Apr. 22, 1793), an action Hamilton pseudonymously defended as a proper exercise of the power vested in the President by the “general grant” of executive power in the Vesting Clause. Pacificus No. 1 (June 29, 1793), Letters of Pacificus and Helvidius 10 (1845); For its part, Congress ap- plauded the President’s decision. 4 Annals of Cong. 18, 138 (1793). In short, the practices of the Washington administration and First Congress confirm that Article II’s Vesting Clause was originally understood to include a grant of residual foreign affairs power to the Executive. II The statutory provision at issue implicates the Presi- dent’s residual foreign affairs power. Section 214(d) in- structs the Secretary of State, upon request of a citizen born in Jerusalem (or that citizen’s legal guardian), to list that citizen’s place of birth as Israel on his passport and consular report of birth abroad, even though it is the undisputed position of the United States that Jerusalem is not a part of Israel. The President argues that this provi- sion violates his foreign affairs powers generally and his recognition power specifically. Zivotofsky rejoins that Congress passed pursuant to its enumerated 10 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. powers and its action must therefore take precedence. Neither has it quite right. The President is not consti- tutionally compelled to implement as it applies to passports because passport regulation falls squarely within his residual foreign affairs power and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport. Section 214(d) can, however, be constitutionally applied to con- sular reports of birth abroad because those documents do not fall within the President’s foreign affairs authority but do fall within Congress’ enumerated powers over naturalization.2 A 1 In the Anglo-American legal tradition, passports have consistently been issued and controlled by the body exer- cising executive power—in England, by the King; in the colonies, by the Continental Congress; and in the United States, by President Washington and every President since. Historically, “passports were classed with those docu- ments known as safe conducts or letters of protection, by —————— 2 The majority asserts that Zivotofsky “waived any argument that his consular report of birth abroad should be treated differently than his passport” in the court below and in this Court because he “fail[ed] to differentiate between the two documents.” Ante, at 5. But at every stage of the proceedings, Zivotofsky |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | at 5. But at every stage of the proceedings, Zivotofsky has pressed his claim that he is entitled to have his place of birth listed as “Israel” on both his passport and his consular report of birth abroad, and the consular report issue is fairly included in the question presented. Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e.g., That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly. Cite as: 576 U. S. (2015) 11 Opinion of THOMAS, J. which the person of an enemy might be rendered safe and inviolable.” G. U. S. Dept. of State, The American Passport: Its History 3 Letters of safe conduct and passports performed different functions in England, but both grew out of the King’s prerogative to regulate the “nation’s intercourse with foreign nations,” see 1 Black- stone 251–253. The King issued letters of safe conduct during times of war, whereas passports were heirs to a tradition of requiring the King’s license to de- part the country, see, e.g., Richard II, Feb. 26, 1383, 2 Calendar of Close Rolls, pp. 281–282 (1920); 1 E. Turner, The Privy Council of England in the Seventeenth and Eighteenth Centuries 1603–1784, p. 151 (1927); see also K. Diplock, Passports and Protection in International Law, in 32 The Grotius Society, Transactions for the Year 1946, Problems of Public and Private International Law 42, 44 (1947). Both safe conducts and passports were in use at the time of the founding. Passports were given “for greater security” “on ordinary occasions [to] persons who meet with no special interference in going and coming,” whereas “safe-conduct[s]” were “given to persons who could not otherwise enter with safety the dominions of the sovereign granting it.” 3 E. de Vattel, The Law of Nations p. 331 (1758 ed. C. Fenwick transl. 1916) (emphasis deleted). Both were issued by the person exercising the external sovereign power of a state. See §62, 275, at 69, 332. In the absence of a separate executive branch of govern- ment, the Continental Congress issued passports during the American Revolution, see, e.g., Resolution (May 9, 1776), in 4 Journals of the Continental Congress 340–341; Resolution (May 24, 1776), in 85; as did the Con- gress under the Articles of Confederation, see, e.g., 25 at 8 (Jan. 24, 1783) (discussing its authority to issue passports under the war power). After the ratification of the Constitution, President 12 ZIVOTOFSKY v. KERRY Opinion of THOMAS, |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | the Constitution, President 12 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. Washington immediately took responsibility for issuing passports. Although “ ‘[ p]ast practice does not, by itself, create power,’ ” “a governmental prac- tice [that] has been open, widespread, and unchallenged since the early days of the Republic should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning, 573 U. S. (2014) (SCALIA, J., concurring in judgment) (slip op., at 5) (alteration in original; some internal quotation marks omitted). The history of the President’s passport regulation in this coun- try is one such practice. From the ratification until the end of the Civil War, the President issued passports with- out any authorization from Congress. As the Department of State later remarked, “In the absence of any law upon the subject, the issuing of passports to Americans going abroad naturally fell to the Department of State, as one of its manifestly proper functions.” 7. To that end, the Secretary’s authority was “entirely discre- tionary.” Congress acted in support of that authority by criminaliz- ing the “violat[ion] [of ] any safe-conduct or passport duly obtained and issued under the authority of the United States.” An Act for the Punishment of certain Crimes against the United States,3 Congress only purported to authorize the President to issue such passports in 1856 and, even under that statute, it provided that passports should be issued “under such rules as the President shall designate and prescribe for and on behalf of the United States.” An Act to regulate the Diplomatic and Consular Systems of the United States, §, 11 Stat. 60. The President has continued to designate and pre- scribe the rules for passports ever since. —————— 3 Until 1978, passports were not generally required to enter or exit the country except during wartime. Cite as: 576 U. S. (2015) 13 Opinion of THOMAS, J. 2 That the President has the power to regulate passports under his residual foreign affairs powers does not, however, end the matter, for Congress has repeatedly legislated on the subject of passports. These laws have always been narrow in scope. For example, Congress enacted laws prohibiting the issuance of passports to noncitizens, at 61, created an exception to that rule for “persons liable to military duty,” Act of Mar. 3, 1863, §, and then eliminated that exception, Act of May 30, 1866, ch. 102, It passed laws regulating the fees that the State Department should impose for issuance of the passports. Act of May 16, 1932, ch. 1, ; Act of June 4, 1920, ; Act of June 15, |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | Act of June 4, 1920, ; Act of June 15, 1917, ch. 30, Title IX, ; Act of Aug. 18, 1856, §, 11 Stat. 60; Act of Mar. 1, 1855, 2, It also enacted legislation addressing the duration for which passports may remain valid. 16, ; Pub. L. 90–428, ; Pub. L. 86–267, ; Act of July 3, 1926, And it passed laws imposing criminal penalties for false statements made when apply- ing for passports, along with misuse of passports and counterfeiting or forgery of them. Act of June 25, 1948, 62 Stat. 771; Act of Mar. 28, 1940, ; 40 Stat. 227.4 As with any congressional action, however, such legisla- tion is constitutionally permissible only insofar as it is promulgated pursuant to one of Congress’ enumerated powers. I must therefore address whether Congress had constitutional authority to enact ’s regulation of passports. —————— 4 JUSTICE SCALIA, in his dissent, faults me for failing to identify the enumerated power under which these laws were permissible, but the question presented in this case is whether is a constitutional exercise of Congress’ power, and that is the question I address. 14 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. a Zivotofsky and congressional amici identify three poten- tial sources of congressional power to enact the portion of dealing with passports. Zivotofsky first argues that it falls within Congress’ power “to regulate the issu- ance and content of United States passports.” Brief for Petitioner 17. The U. S. Senate, as amicus curiae, like- wise contends that it can be justified under Congress’ “plenary authority over passports,” which it derives from the penumbras of its powers “ ‘[t]o regulate Commerce with foreign Nations’ ” and “ ‘[t]o establish an uniform Rule of Naturalization.’ ” Brief for United States Senate 3 (quoting U. S. Const., Art. I, cls. 3, 4). None of these arguments withstands scrutiny. The Constitution contains no Passport Clause, nor does it explicitly vest Congress with “plenary authority over passports.” Because our Government is one of enumerated powers, “Congress has no power to act unless the Consti- tution authorizes it to do so.” United 1 And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Congress may exercise.” A “passport power” is not one of them. Section 214(d)’s passport directive fares no better under those powers actually included in Article I. To start, it does not fall within the power “[t]o regulate Commerce with foreign Nations.” “At the time the original Constitu- tion was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United (THOMAS, |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | bartering, as well as transporting for these purposes.” United (THOMAS, J., concurring). The listing of the place of birth of an applicant—whether born in Jerusalem or not—does not involve selling, buying, bartering, or transporting for those purposes. Cf. United 529 U.S. 8, 613 (2000) (“[O]ur cases have upheld Commerce Clause regulation of intrastate activity [under the power to regu- Cite as: 576 U. S. (2015) 15 Opinion of THOMAS, J. late commerce among the several States] only where that activity is economic in nature”). True, a passport is frequently used by persons who may intend to engage in commerce abroad, but that use is insufficient to bring ’s passport directive within the scope of this power. The specific conduct at issue here— the listing of the birthplace of a U. S. citizen born in Jeru- salem on a passport by the President—is not a commercial activity. Any commercial activities subsequently under- taken by the bearer of a passport are yet further removed from that regulation. The power “[t]o establish an uniform Rule of Naturaliza- tion” is similarly unavailing. At the founding, the word “naturalization” meant “[t]he act of investing aliens with the privileges of native subjects.” 2 S. A Diction- ary of the English Language 1293 (4th ed. 1773); see also T. Dyche & W. Pardon, A New General English Dictionary (1771) (“the making a foreigner or alien, a denizen or freeman of any kingdom or city, and so becoming, as it were, both a subject and a native of a king or country, that by nature he did not belong to”). A passport has never been issued as part of the naturalization process. It is— and has always been—a “travel document,” Dept. of State, 7 Foreign Affairs Manual (or FAM) 311(b) (2013), issued for the same purpose it has always served: a request from one sovereign to another for the protection of the bearer. See at 10–12. b For similar reasons, the Necessary and Proper Clause gives Congress no authority here. That Clause provides, “The Congress shall have Power [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 16 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. U. S. Const., Art. I, cl. 18. As an initial matter, “Con- gress lacks authority to legislate [under this provision] if the objective is anything other than ‘carrying into Execu- tion’ one or more of the Federal Government’s enumerated powers.” (THOMAS, J., dissent- |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | more of the Federal Government’s enumerated powers.” (THOMAS, J., dissent- ing). The “end [must] be legitimate” under our constitu- tional structure. 421 (1819). But even if the objective of a law is carrying into execu- tion one of the Federal Government’s enumerated powers, the law must be both necessary and proper to that objec- tive. The “Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.” Gonzales v. Raich, 545 U.S. 1, 60 (2005) Instead, “there must be a necessary and proper fit between the ‘means’ (the federal law) and the ‘end’ (the enumerated power or powers) it is designed to serve.” The “means” chosen by Con- gress “will be deemed ‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’ to the exercise of an enumerated power, and ‘proper’ if they are not otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’ with its ‘letter and spirit.’ ” –161 (alteration in original). The argument that as applied to passports, could be an exercise of Congress’ power to carry into exe- cution its foreign commerce or naturalization powers falters because this aspect of is directed at neither of the ends served by these powers. Although at a high level of generality, a passport could be related to foreign commerce and naturalization, that attenuated relation- ship is insufficient. The law in question must be “directly link[ed]” to the enumerated power. As applied to passports, fails that test because it does not “ ‘carr[y] into Execution’ ” Congress’ foreign commerce or naturalization powers. At most, it bears a Cite as: 576 U. S. (2015) 17 Opinion of THOMAS, J. tertiary relationship to an activity Congress is permitted to regulate: It directs the President’s formulation of a document, which, in turn, may be used to facilitate travel, which, in turn, may facilitate foreign commerce. And the distinctive history of the passport as a travel rather than citizenship document makes its connection to naturaliza- tion even more tenuous. Nor can this aspect of be justified as an exercise of Congress’ power to enact laws to carry into execution the President’s residual foreign affairs powers. Simply put, ’s passport directive is not a “proper” means of carrying this power into execution. To be “proper,” a law must fall within the peculiar com- petence of Congress under the Constitution. Though “proper” was susceptible of several definitions at the time of the founding, only two are plausible candidates for use in the Necessary and Proper Clause—(1) “[f ]it; accommo- dated; adapted; suitable; qualified” and (2) “[ p]eculiar; |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | ]it; accommo- dated; adapted; suitable; qualified” and (2) “[ p]eculiar; not belonging to more; not common.” See 2 at 1537. Because the former would render the word “neces- sary” superfluous, and we ordi- narily attempt to give effect “to each word of the Constitu- tion,” the latter is the more plausible. That is particularly true because the Constitution elsewhere uses the term “proper” by itself, Art. I, Art. II, 3; the term “necessary” by itself, Art. I, Art. V; and the term “necessary” as part of the phrase “necessary and expedient,” Art. II, Thus, the best interpretation of “proper” is that a law must fall within the peculiar jurisdiction of Congress. Our constitutional structure imposes three key limita- tions on that jurisdiction: It must conform to (1) the alloca- tion of authority within the Federal Government, (2) the allocation of power between the Federal Government and the States, and (3) the protections for retained individual rights under the Constitution. See Lawson & 18 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 291, 297 (1993). In other words, to be “proper,” a law “must be consistent with principles of separation of pow- ers, principles of federalism, and individual rights.” 7. Commentators during the ratification debates treated “proper” as having this meaning. Writing as Publius, Hamilton posed the question who would “judge the necessity and propriety of the laws to be passed for execut- ing the powers of the Union” and responded that “[t]he propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” The Federalist, No. 33, pp. 203–204. For example, a law that “exceeded [Congress’] jurisdiction” and invaded the authority of the States would not meet that standard. Similarly, an “impartial citi- zen” wrote in a Virginia newspaper that, even if the gov- ernmental powers could not “be executed without the aid of a law, granting commercial monopolies, inflicting un- usual punishments, creating new crimes, or commanding any unconstitutional act,” thus making the law necessary to the execution of a power, “such a law would be mani- festly not proper,” and not “warranted by this clause, without absolutely departing from the usual acceptation of words.” An Impartial Citizen V, Petersburg Va. Gazette, Feb. 28, 1788, in 8 Documentary History of the Ratifica- tion of the Constitution 428, 431 (J. Kaminski & G. Sala- dino eds. 1988) (emphasis deleted). Early interpretations of the Clause following ratification largely confirm that view. Lawson |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | of the Clause following ratification largely confirm that view. Lawson & at 298–308. During debate on the Bank of the United States in the First Congress, for example, Representative Ames declared that the correct construction of the Necessary and Proper Clause “promotes the good of the society, and the ends for which the Government was adopted, without Cite as: 576 U. S. (2015) 19 Opinion of THOMAS, J. impairing the rights of any man, or the powers of any State.” 2 Annals of Cong. 1906 (1791). During the Second Congress, Representative Niles railed against a bill that would have authorized federal mail carriers to transport passengers for hire in order to reduce the cost of the mails. He said that such a law would not be “proper” to the power to establish post offices and post roads because some States had “an exclusive right of carrying passengers for hire” and an interpretation of the word “proper” that would allow the bill would render “as nugatory, all [the States’] deliberations on the Constitution” and effectively vest Congress with “general authority to legislate on every subject.” 3 08–310 (1792) (emphasis deleted). Each of these comments presumed that the word “proper” imposed a jurisdictional limit on congressional activity. This evidence makes sense in light of the Framers’ efforts to ensure a separation of powers, reinforced by checks and balances, as “practical and real protectio[n] for individual liberty in the new Constitution.” Perez v. Mort- gage Bankers Assn., 575 U. S. (2015) (THOMAS, J., concurring in judgment) (slip op., at 8). If Congress could rely on the Necessary and Proper Clause to exercise power expressly allocated to the other branches or to prevent the exercise of such power by other branches, it could under- mine the constitutional allocation of powers. That the evidence thus points to a definition of “proper” that protects the separation of powers does not fully ex- plain the way that the “proper” requirement operates when Congress seeks to facilitate the exercise of a power allocated to another branch. I can see two potential mech- anisms, either or both of which may accurately reflect the original understanding of the Clause. First, a law could be “improper” if it purports to direct another branch’s exer- cise of its power. See Calabresi & Prakash, The Presi- dent’s Power to Execute the Laws, 104 Yale L. J. 541, 1 (1994) (“[T]he Clause does [not] allow Congress to tell 20 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. constitutionally empowered actors how they can imple- ment their exclusive powers”). Second, a law could be “improper” if |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | their exclusive powers”). Second, a law could be “improper” if it takes one of those actions and the branch to which the power is allocated objects to the action. See Prakash & Ramsey 255–256 (“Congress has the general power to legislate in support of the President’s foreign policy goals. But [s]ince it is derivative of the Presi- dent’s power, it must be exercised in coordination with, and not in opposition to, the President”). I need not resolve that question today, as the applica- tion of to passports would be improper under either approach. The President has made a determination that the “place of birth” on a passport should list the country of present sovereignty. 7 FAM, 300, App. D, 330 (2014). And the President has determined that no country is presently exercising sovereignty over the area of Jerusalem. Thus, the President has provided that passports for persons born in Jerusalem should list “Jeru- salem” as the place of birth in the passport. 360(f ). Section 214(d) directs the President to exercise his power to issue and regulate the content of passports in a particu- lar way, and the President has objected to that direction. Under either potential mechanism for evaluating the propriety of a law under the separation-of-powers limita- tion, this law would be improper.5 c In support of his argument that the President must enforce Zivotofsky relies heavily on a similar statute addressing the place of birth designation for per- sons born in Taiwan. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 32, That statute provided, “For purposes of the registration of —————— 5 Because is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President’s power. Cite as: 576 U. S. (2015) 21 Opinion of THOMAS, J. birth or certification of nationality of a United States citizen born in Taiwan, the Secretary of State shall permit the place of birth to be recorded as Taiwan.” The President has adopted that practice. The President’s decision to adopt that practice, however, says nothing about the constitutionality of the Taiwan provision in the first place. The constitutional allocation of powers “does not depend on the views of individual Presidents, nor on whether the encroached upon branch approves the encroachment.” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 497 (citation and internal quotation marks omit- ted).6 And the argument from Presidential acquiescence here is particularly weak, given that the Taiwan statute is consistent with the President’s longstanding policy on Taiwan. At the time Congress enacted the statute, the Foreign Affairs |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | At the time Congress enacted the statute, the Foreign Affairs Manual permitted consular officials to list “the city or area of birth” on a passport “[w]here the birth- place of the applicant is located in territory disputed by another country,” 7 FAM 383.5–2 (19), and to list “the city or town, rather than the country” of an applicant’s birth “when there are objections to the listing shown on the birthplace guide,” 383.6. Because the President otherwise treats Taiwan as a geographical area within the People’s Republic of China, listing Taiwan as the place of birth did not directly conflict with the President’s prevail- ing practices. Section 214(d) does so conflict, as it requires the President to list citizens born in Jerusalem as born in “Israel,” even though the Foreign Affairs Manual has long —————— 6 This principle is not necessarily inconsistent with the second mech- anism for evaluating congressional action under the Necessary and Proper Clause discussed above. Although that mechanism would tie the propriety of congressional action to the objection (or nonobjection) of another branch, the point of that tying feature is to determine whether, in fact, Congress has encroached upon another branch, not whether such encroachment is acceptable. 22 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. prohibited that action. d JUSTICE SCALIA would locate Congress’ power to enact the passport directive of in Congress’ power under the Necessary and Proper Clause to bring into effect its enumerated power over naturalization. Post, –4 (dis- senting opinion). As an initial matter, he asserts that “[t]he naturalization power enables Congress to fur- nish the people it makes citizens with papers verifying their citizenship,” post, yet offers no support for this interpretation of a clause that, by its terms, grants Con- gress only the “Power To establish an uniform Rule of Naturalization,” U. S. Const., Art. I, cl. 4. He then concludes that, if Congress can grant such documents, “it may also require these [documents] to record his birth- place as ‘Israel’ ” pursuant to its power under the Neces- sary and Proper Clause, post, But this theory does not account for the President’s power to act in this area, nor does it confront difficult questions about the applica- tion of the Necessary and Proper Clause in the case of conflict among the branches. JUSTICE SCALIA disapproves of my “assertion of broad, unenumerated ‘residual powers’ in the President,” post, at 19, but offers no response to my interpretation of the words “executive Power” in the Constitution. Instead, he claims that I have argued for “Presidential primacy over passports” and then rejects that |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | argued for “Presidential primacy over passports” and then rejects that position based on two postratification English statutes, the early practice of nonfederal actors issuing passports in this country, and the same congressional statutes that I have already dis- cussed, most of which were enacted after the Civil War. Post, at 16–17; and n. 4. But I do not argue that the President possesses primary power over pass- ports. I need not argue that. I argue only that Congress did not act according to any of the powers granted to it in Cite as: 576 U. S. (2015) Opinion of THOMAS, J. the Constitution and, in such circumstances, the question of primacy does not arise. In any event, the historical evidence cited in JUSTICE SCALIA’s dissent does not conflict with my analysis of the President’s power in this area. The two postratification English statutes implicitly acknowledged that passports are issued by executive officers in the exercise of executive power, see 38 Geo. III, ch. 50, in 41 Eng. Stat. at Large 684; 33 Geo. III, ch. 4, in 39 Eng. Stat. at Large 12, and the practice of executive officials in the States of this country confirms that relationship. In addition, neither piece of historical evidence speaks to the scope of Congress’ power to regulate passports under our federal system. JUSTICE SCALIA’s final piece of historical support—the increased congressional regulation of passports following the Civil War—is perhaps more on point from an institu- tional perspective, but still does not resolve the issue. Those regulations were, as I have already described, nar- row in scope and continued to leave primary regulation of the content of passports to the President. To draw an inference from these “late-arising historical practices that are ambiguous at best”—and that might conflict with the original meaning of the “executive Power” and the “proper” requirement in the Necessary and Proper Clause—is a dubious way to undertake constitutional analysis. See Noel Canning, 573 U. S., at (SCALIA, J., concurring in judgment) (slip op., ). Even more dubious, however, is the cursory treatment of the Necessary and Proper Clause in JUSTICE SCALIA’s dissent. He asserts that, in acting pursuant to that Clause, “Congress may not transcend boundaries upon legislative authority stated or implied elsewhere in the Constitution.” Post, at 4. But he offers no explanation for what those implied limits might be or how they would operate. Does he, for example, agree that the word “proper” requires Congress to act in a manner “ ‘consistent with 24 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. principles of separation of powers, principles of |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | of THOMAS, J. principles of separation of powers, principles of federalism, and individual rights’ ”? (quoting Lawson & Grainger, 43 Duke L. J., 7). If so, then why does he find that requirement satisfied in this case? Is it because he views the President as having no constitutional author- ity to act in this area? Or is it because he views Congress’ directive to the President as consistent with the separa- tion of powers, irrespective of the President’s authority? If the latter, is that because he perceives no separation-of- powers limitations on Congress when it acts to carry into execution one of its enumerated powers, as opposed to the enumerated powers of another branch? And if that is the case, what textual, structural, or historical evidence exists for that interpretation? JUSTICE SCALIA’s dissent raises more questions than it answers. JUSTICE SCALIA’s dissent does at least answer how, in his view, the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution. He believes that congressional power should trump in any such conflict. Post, I see nothing in the Constitution that clearly mandates that solution to a difficult separation-of-powers question, and I need not opine on it. I find no power under which Congress could lawfully have enacted the passport directive of apart from its power under the Neces- sary and Proper Clause to carry into effect the President’s powers. And I have offered textual and historical support for my conclusion that the Clause does not include the power to direct the President’s exercise of his passport power. Finally, JUSTICE SCALIA faults me for failing to consider a number of potential sources of congressional power for not argued by any of the parties, ranging from the Fourteenth Amendment; to the Migration or Importation Clause, Art. I, cl. 1; to the Territories Clause, Art. IV, cl. 2. Post, at 15. But no one—not even JUSTICE Cite as: 576 U. S. (2015) 25 Opinion of THOMAS, J. SCALIA—has seriously contended that those provisions would afford a basis for the passport provision of In the end, JUSTICE SCALIA characterizes my interpreta- tion of the executive power, the naturalization power, and the Necessary and Proper Clause as producing “a presi- dency more reminiscent of George III than George Wash- ington.” Post, at 19. But he offers no competing interpre- tation of either the Article II Vesting Clause or the Necessary and Proper Clause. And his decision about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America. * * * Because the President has residual foreign affairs au- thority to regulate passports and because there appears to be no congressional power that justifies ’s applica- tion to passports, Zivotofsky’s challenge to the Executive’s designation of his place of birth on his passport must fail. B Although the consular report of birth abroad shares some features with a passport, it is historically associated with naturalization, not foreign affairs. In order to estab- lish a “uniform Rule of Naturalization,” Congress must be able to identify the categories of persons who are eligible for naturalization, along with the rules for that process. Congress thus has always regulated the “acquisition of citizenship by being born abroad of American parents in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization.” United ; see also 5 U.S. 420, (SCALIA, J., concurring in judgment) (recognizing that “Congress has the power to set the requirements for acquisition of 26 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. citizenship by persons not born within the territory of the United States”). It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U.S. C. 1401(c), (d), (g). The consular report of birth abroad is well suited to carrying into execution the power conferred on Congress in the Naturalization Clause. The report developed in response to Congress’ requirement that children born abroad to U. S. citizens register with the consulate or lose their citizenship. And it continues to certify the acquisi- tion of U. S. citizenship at birth by a person born abroad to a U. S. citizen. See 22 U.S. C. Although such persons have possessed a statutory right to citizenship at birth for much of this country’s history,7 the process by which that citizenship is evidenced has varied over time. Under the 10 consular regulations, for instance, children born abroad to U. S. citizens were is- sued no certificates. If they applied for a U. S. passport, then they were issued one “qualified by the obligations and duties” that attached to those citizens by virtue of their residence in a foreign nation. Regulations Prescribed For The Use Of The Consular Service of the United States App. No. IV, p. 288 (10); see also 09, at 38–39. Congress acted in 1907 to require children resid- ing abroad to register with their |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | to require children resid- ing abroad to register with their local consulate at the age of 18. Act of Mar. 2, 1907, Because of the importance of this registration requirement, consular —————— 7 The First Congress passed a law recognizing citizenship at birth for children born abroad to U. S. citizens. Act of Mar. 26, 1790, ch. 3, 1 Stat. 104. An 1802 amendment to the provision rendered the availabil- ity of this citizenship uncertain. Binney, The Alienigenae of the United States, 2 Am. L. Reg. 193, 193 (1854). But Congress acted to clarify the availability of such citizenship in 1855, Act of Feb. 10, 1855, ch. 71, 10 Stat. 604, and it continues to exist to this day, see Immigration and Nationality Act, 66 Stat. 5. Cite as: 576 U. S. (2015) 27 Opinion of THOMAS, J. officials began to issue reports to citizens confirming their registration. See generally National Archives, General Records of the Dept. of State, Record Group Passport Office, Decimal File, 1910–1949. In 1919, the Department of State acted to standardize the consular registration of children born abroad. Report of Birth of Children to American Citizens Residing Abroad, General Instruction No. 652. It urged consulates to impress upon U. S. citizens abroad the need to record the birth of their children within two years. To encourage that effort, the Department permitted consular officials to issue reports attesting that the parents of U. S. citizens born abroad had presented sufficient evidence of citizenship for their children. The 1960’s brought additional regulations of consular reports of birth abroad, (1966), which continue in a substantially similar form to this day. See 22 CFR 50.5, 50.7 (2014). As currently issued, the consular report of birth abroad includes the applicant’s name, sex, place of birth, date of birth, and parents. It has had the “same force and effect as proof of United States citizenship as [a] certificat[e] of naturalization” since 1982. 17, Thus, although registration is no longer required to maintain birthright citizenship, the consular report of birth abroad remains the primary means by which chil- dren born abroad may obtain official acknowledgement of their citizenship. See Once acknowledged as U. S. citizens, they need not pursue the naturalization process to obtain the rights and privileges of citizenship in this country. Regulation of the report is thus “appropri- ate” and “plainly adapted” to the exercise of the naturali- zation power. See 560 U.S., (THOMAS, J., dissenting). By contrast, regulation of the report bears no relation- ship to the President’s residual foreign affairs power. It 28 ZIVOTOFSKY v. KERRY Opinion of THOMAS, |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | affairs power. It 28 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. has no historical pedigree uniquely associated with the President, contains no communication directed at a for- eign power, and is primarily used for domestic purposes. To the extent that a citizen born abroad seeks a document to use as evidence of his citizenship abroad, he must ob- tain a passport. See generally 7 FAM 311. Because regulation of the consular report of birth abroad is justified as an exercise of Congress’ powers under the Naturalization and Necessary and Proper Clauses and does not fall within the President’s foreign affairs powers, ’s treatment of that document is constitutional.8 III The majority does not perform this analysis, but instead relies on a variation of the recognition power. That power is among the foreign affairs powers vested in the President by Article II’s Vesting Clause, as is confirmed by Article II’s express assignment to the President of the duty of receiving foreign Ambassadors, Art. II, But I cannot join the majority’s analysis because no act of recognition is implicated here.9 —————— 8 As the issue is not presented, I need not decide how a direct conflict between action pursuant to an enumerated power of Congress and action pursuant to the residual foreign affairs power of the President should be resolved. 9 I assume, as the majority does, that the recognition power conferred on the President by the Constitution is the power to accomplish the act of recognition as that act is defined under international law. It is possible, of course, that the Framers had a fixed understanding of the act of recognition that is at odds with the definition of that act under international law. But the majority does not make that argument, nor does the majority even specifically address how consular reports of birth abroad are related to recognition. Lacking any evidence that the modern practice of recognition deviates in any relevant way from the historical practice, or that the original understanding of the recognition power was something other than the power to take part in that prac- tice, I proceed on the same assumption as the majority. Cite as: 576 U. S. (2015) 29 Opinion of THOMAS, J. Under international law, “recognition of a state signifies acceptance of its position within the international commu- nity and the possession by it of the full range of rights and obligations which are the normal attributes of statehood.” 1 Oppenheim’s International Law 158 (R. Jennings & A. Watts eds., 9th ed. 1992) (footnote omitted) (Oppen- heim).10 It can be accomplished expressly or implicitly, |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | omitted) (Oppen- heim).10 It can be accomplished expressly or implicitly, but the key is to discern a clear intention on the part of one state to recognize another. at 169. Important consequences are understood to flow from one state’s recognition of another: The new state, for instance, ac- quires the capacity to engage in diplomatic relations, including the negotiation of treaties, with the recognizing state. at 158. The new state is also entitled to sue in, invoke sovereign immunity from, and demand acceptance of official acts in the courts of the recognizing state. ; see also I. Brownlie, Principles of Public International Law 95–96 (7th ed. 2008). Changes in territory generally do not affect the status of a state as an international person. Oppenheim at 204–205. France, for example, “has over the centuries retained its identity although it acquired, lost and re- gained parts of its territory, changed its dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now once more a repub- lic.” “Even such loss of territory as occasions the reduction of a major power to a lesser status does not affect the state as an international person.” at 205. Changes that would affect the status as an interna- tional person include the union of two separate interna- —————— 10 Scholars have long debated the extent to which official recognition by the sovereign states that make up the international community is necessary to bring a new “state” into the international community and thereby subject it to international law. Oppenheim at 128–129. Resolving this debate is not necessary to resolve the issue at hand, so I describe the modern view of recognition without endorsing it. 30 ZIVOTOFSKY v. KERRY Opinion of THOMAS, J. tional persons or a partial loss of independence. 06. Assuming for the sake of argument that listing a non- recognized foreign sovereign as a citizen’s place of birth on a U. S. passport could have the effect of recognizing that sovereign under international law, no such recognition would occur under the circumstances presented here. The United States has recognized Israel as a foreign sovereign since May 14, 1948. Statement by the President Announc- ing the Recognition of the State of Israel, Public Papers of the Presidents, Harry S. Truman, p. 258 (1964). That the United States has subsequently declined to acknowledge Israel’s sovereignty over Jerusalem has not changed its recognition of Israel as a sovereign state. And even if the United States were to acknowledge Israel’s sovereignty over Jerusalem, that action would not change its recogni- |
Justice Breyer | 2,015 | 2 | concurring | Zivotofsky v. Kerry | https://www.courtlistener.com/opinion/2808294/zivotofsky-v-kerry/ | sovereignty over Jerusalem, that action would not change its recogni- tion of Israel as a sovereign state. That is because the United States has already afforded Israel the rights and responsibilities attendant to its status as a sovereign State. Taking a different position on the Jerusalem ques- tion will have no effect on that recognition.11 Perhaps recognizing that a formal recognition is not implicated here, the majority reasons that, if the Execu- tive’s exclusive recognition power “is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s state- ments.” Ante, 6. By “alter[ing] the President’s state- ments on matters of recognition or forc[ing] him to contra- dict them,” the majority reasons, “Congress in effect would exercise the recognition power.” Ante, 7. This argu- ment stretches the recognition power beyond all recogni- —————— 11 The analysis might look different if required the President to list as a “place of birth” a country that the United States has never officially recognized. That is not the case here. Cite as: 576 U. S. (2015) 31 Opinion of THOMAS, J. tion. Listing a Jerusalem-born citizen’s place of birth as “Israel” cannot amount to recognition because the United States already recognizes Israel as an international per- son. Rather than adopt a novel definition of the recogni- tion power, the majority should have looked to other for- eign affairs powers in the Constitution to resolve this dispute. * * * Adhering to the Constitution’s allocation of powers leads me to reach a different conclusion in this case from my colleagues: Section 214(d) can be constitutionally applied to consular reports of birth abroad, but not passports. I therefore respectfully concur in the judgment in part and dissent in part. Cite as: 576 U. S. (2015) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–628 MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. |
Justice O'Connor | 1,982 | 14 | majority | United States v. Clark | https://www.courtlistener.com/opinion/110601/united-states-v-clark/ | The issue in this case is whether 5 U.S. C. 5334(b), which requires a two-step pay increase for federal employees "promoted to a position in a higher grade," applies to prevailing wage rate employees promoted to General Schedule positions. We hold that it does not apply, and reverse the judgment of the Court of Claims. I This case involves the relationship between the two principal pay systems for federal employees and the pay treatment to which an employee moving from one system to another is entitled. Both systems are governed by Title 5, United States Code. One of the pay systems, the General Schedule (GS), 5 U.S. C. 5331 et seq. (1976 ed. and Supp. V), applies to federal "white-collar" employees. See R. Vaughn, Principles *557 of Civil Service Law 6.2(a), p. 6-4 (1976) (hereinafter Vaughn). The GS is divided into 18 numbered grades; as the number of the grade increases, so do pay and responsibilities. 5104 and 5332 (1976 ed. and Supp. V). The grades are subdivided into rates of pay or "steps." 5332. The salary for each step of each grade in the GS is uniform nationwide.[1] The second principal pay system is the prevailing rate wage system (WS), 5 U.S. C. 5341 et seq. (1976 ed. and Supp. V), which primarily applies to those federal "blue-collar" employees specifically excluded from the GS. See 5102(b), (c)(7), 5331, and 5342(a)(2)(A); Vaughn 6.2(b), p. 6-17. The WS also is divided into grades and subdivided into "steps." The rate of pay for each step within each grade is based upon wage surveys of prevailing rates for comparable work in local wage areas. 5343 (1976 ed. and Supp. V); Office of Personnel Management, Federal Personnel Manual, Supp. 532-1, 56 (hereinafter FPM). Pay rates for positions within the WS thus vary from one locale to another. Salary treatment for GS employees who change their employment status and employees shifted or hired into the GS system is governed by 5 U.S. C. 5334 (1976 ed. and Supp. V) and regulations promulgated pursuant thereto. Under the statute, an employee's salary after promotion is determined by reference either to the "highest previous rate" rule[2] or to the "two-step increase" rule.[3] *558 Prior to July 1973, all six respondents worked as federal civilian employees for the Supervisor of Shipbuilding, Department of the Navy. In those positions, they were paid pursuant to the WS. Between July 1973 and October 1974, all were promoted to positions covered by the GS.[4] After his promotion, Libretto learned that the other respondents received a salary increase equivalent to a two-step pay increase |
Justice O'Connor | 1,982 | 14 | majority | United States v. Clark | https://www.courtlistener.com/opinion/110601/united-states-v-clark/ | received a salary increase equivalent to a two-step pay increase on their appointment to the GS positions.[5] Since Libretto's *559 increase was based upon the "highest previous rate" rule and was much smaller, he filed a claim with the Department of the Navy. As a result, the Navy reexamined the salary treatment afforded respondents. Concluding the salaries of all should have been determined by applying the "highest previous rate" rule, the Navy denied Libretto's claim and notified the other respondents their salaries would be reduced accordingly. Respondents unsuccessfully pursued their administrative remedies and then filed this action in the Court of Claims under the Tucker Act, 28 U.S. C. 1491, and the Back Pay Act of 1966, 5 U.S. C. 5596. Respondents contended they were entitled to a two-step increase in pay pursuant to 5 U.S. C. 5334(b) (1976 ed., Supp. V) The Government opposed the claims on the ground that 5334(b) applies only to promotions within the GS and not to shifts or promotions between the WS and the GS, which are governed by 5334(a). The Court of Claims, reasoning that respondents had been "promoted" within the meaning of 5 CFR 531.202(h)(2) *560 (1969),[6] determined they were entitled to a two-step increase under 5334(b). Accordingly, the court invalidated, as inconsistent with the statute, 5 CFR 531.204(a) (1969), which construed 5334(b) as limited to transfers or promotions within the GS. After remand, the parties stipulated to the amount of respondent's recovery, and the court entered final judgment on August 8, 1980. We granted the Government's petition for writ of certiorari to the United States Court of Claims. We have jurisdiction based upon 28 U.S. C. 1255. II We look first to the language and organization of the statutes governing General Schedule pay rates and the prevailing rate wage system. If the statutory language is clear, it is ordinarily conclusive. See Consumer Product Safety Section 5334 is part of subchapter III, chapter 53 of Title 5, entitled "General Schedule Pay Rates." Subsection 5334(a) describes the general conditions, including promotions, under which a GS employee is entitled to a change in basic pay. It directs simply that the rate is "governed by regulations prescribed by the [Civil Service Commission]." Following that direction, the Civil Service Commission promulgated the "highest previous rate" rule.[7] *561 In subsection 5334(b), on the other hand, Congress restricted the Commission's discretion in one limited situation: "An employees who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of |
Justice O'Connor | 1,982 | 14 | majority | United States v. Clark | https://www.courtlistener.com/opinion/110601/united-states-v-clark/ | of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred." For purposes of subchapter III, 5 U.S. C. 5331 assigns the word "grade" the meaning given the term by 5 U.S. C. 5102(a)(5). That section, in turn, defines a grade as those positions sufficiently similar to warrant their inclusion within one range of rates of basic pay "in the General Schedule." Giving 5334(b) its plain meaning, then, when an employee is promoted to a position in a higher grade "in the General Schedule," he is entitled to pay which exceeds by two step-increase his pay in the grade "in the General Schedule" from which he was promoted. The Wage System, on the other hand, is governed by subchapter IV of chapter 53, Title 5. No express statutory provision in subchapter IV defines how an employee's salary should be set when a WS employee is promoted to a GS position. Thus, the only applicable statutory provisions are those found in subchapter III and its accompanying regulations, which specifically limit the two-step increase to promotions within the GS. Nothing in the statutory language indicates Congress intended to include employees promoted from WS to GS within the two-step requirement of 5334(b). Absent such language, the statute and the accompanying regulations reveal a congressional intend to apply the two-step increase provision of 5334(b) only to promotions or transfers of employees already within the GS system. III Although the language of the statute is clear, any lingering doubt as to its proper construction may be resolved by examining the legislative history of the statute and by according *562 due deference to the longstanding interpretation given the statute by the agencies charged with its interpretation. See The legislative history of 5334(b) reinforces the apparent intent of the statutory language. The predecessor to 5334(b) was 802(b) of the Classification Act of 1949, 5 U.S. C. 1071 et seq. (1946 ed. and Supp. IV) (1949 Act).[8] Through the 1949 Act, Congress completely revised the Classification Act of 1923, Pub. L. 516, 5 U.S. C. 661 et seq. (1925-1926 ed). Under the latter statute, an employee who was at the top step of the his grade could receive little or no salary increase upon promotion to a higher grade. That inequity resulted because the salary for the higher steps in one grade could equal or exceed the salary for the lower steps in the next higher grade. Congress' 1949 revision plainly undertook to correct this problem: the 1949 Act numbered among |
Justice O'Connor | 1,982 | 14 | majority | United States v. Clark | https://www.courtlistener.com/opinion/110601/united-states-v-clark/ | undertook to correct this problem: the 1949 Act numbered among its stated purposes the need "to permit the solution of certain troublesome problems or to avoid unintentional pay inequities in the conduct of various personnel transactions." S. Rep. No. 847, 81st Cong. 1st, Sess., 4 (1949). Congress, moreover, understood the precise nature of the salary overlap problem. The Committee Reports which accompanied the proposed revisions explained: "At present, a promoted employee receives no immediate increase if he is already receiving a rate in the lower grade that also occurs in the higher grade. If he is receiving a rate in the lower grade that falls between two rates of the higher grade, he is promoted at the higher of these two rates. "In too many cases, accordingly, an employee who is promoted to greater responsibilities or more difficult duties receives no immediate increase in pay. This is not in accord with the commonly accepted principle that a promotion in pay should [concurrently] accompany a promotion in duties and responsibilities. *563 "Subsection (b) of section 802 corrects this situation." ; H. R. Rep. No. 1264, 81st Cong., 1st Sess., 12-13 (1949). Examination of the history of the prevailing wage system dispels any notion that Congress intended the corrective measure of 802(b) to apply to movement between the prevailing wage and Classification Act systems. In 1949, each federal agency had its own pay system for blue-collar workers. As a result, employees holding the same federal position in the same locale often received different wages if they worked for different agencies. In addition, each agency had its own job grading system for prevailing wage employees, which resulted in widely varying numbers of grades and wage steps.[9] Nothing in the legislative history suggests that Congress was even aware of much less was attempting to adjust the varied results that might occur if a prevailing wage worker moved into a Classification Act position. The 1949 legislative history suggests only that Congress was concerned with inequities that might occur through application of the Classification Act system to movement within that system. Moreover, in 1972, approximately one year before respondents' promotions, Congress undertook a comprehensive examination of the prevailing wage statutes and amended existing laws to declare congressional policy for the payment of prevailing wage employees. See S. Rep. No. 92-791, p. 1 (1972). Congress' stated purpose was to codify existing law. As part of the 1972 amendments, Congress for the first time directed that a grading system be established and maintained for prevailing wage employees.[10] 5 U.S. C. *564 5346 (1976 ed. and Supp. |
Justice O'Connor | 1,982 | 14 | majority | United States v. Clark | https://www.courtlistener.com/opinion/110601/united-states-v-clark/ | employees.[10] 5 U.S. C. *564 5346 (1976 ed. and Supp. V). Even then, Congress made no effect to correlate the WS grades with those used in the GS. By that time, the agency practice of specifically limiting 5334(b) and its predecessor to transfers between Classification Act, or GS, positions had been followed for nearly 25 years.[11] Congress' failure to correct that practice, if it did not correspond with congressional intend, at the very time Congress was revamping the laws applicable to pay for prevailing wage positions provides further evidence of its intent that 802(b) and, later, 5334(b) apply only to GS employees. See United The absence of any indication that Congress intended 5334(b) to apply to promotions into the GS from the WS is hardly surprising, since the two systems have no necessary or obvious relationship. First, because the WS involves an entirely separate pay structure based on prevailing rates in local wage areas, no necessary overlap occurs between WS and GS salaries. In fact, since WS rates vary by locale, an employee changing from a WS position to a GS position could receive a greater salary, a lesser salary, or the same salary as another employee making the identical change in another part of the country. Moreover, although by definition a change to a higher grade within the GS system involves a change to a position with greater responsibility (see 5 U.S. C. 5102(a)(5) (1076 ed. Supp. V)), no similar relationship necessarily exists between a WS grade and a GS Grade.[12] *565 Although the legislative history does not expressly indicate that Congress intended to limit 5334(b) and its predecessor to GS employees, the history provides ample indication that such was Congress' intent. Moreover, the reasons for enactment of the provision are consistent with such a limitation. IV Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time. See In this instance, the agency responsible for proposing and administering 5334(b) has consistently construed it to apply only to promotions within the GS. Section 802(b) of the 1949 Act was drafted and submitted to the Congress by the Civil Service Commission.[13] Soon after its enactment, the Civil Service Commission promulgated regulations interpreting the section. The first regulations guaranteed a pay increase to one promoted "to a higher grade between Classification Act [GS] positions" 15 Feb. Reg. 7868 (1950), 5 CFR 25.104(a) (Supp. 1951).[14] In contrast, an employee promoted or transferred from another *566 pay system into the Classification |
Justice O'Connor | 1,982 | 14 | majority | United States v. Clark | https://www.courtlistener.com/opinion/110601/united-states-v-clark/ | or transferred from another *566 pay system into the Classification Act system was subject to the "higher previous rate" rule. 15 Feb. Reg. 1235 (1950), 5 CFR 25.103(b) (Supp. 1951). Subsequent versions of the regulations continued to apply the automatic salary increase of 802(b) and, later, of 5334(b), only to promotions or transfers within the Classification Act, or GS, System.[15] In fact, the regulation in effect when respondents were promoted expressly provided that the two-step pay increase provision of 5334(b) applied "only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade." 33 Feb. Reg. 12450 (1968), 5 CFR 531.204(a)(1) (1969).[16] V The language of the statute, the entire statutory scheme, the legislative history, and consistent administrative interpretation *567 all demonstrate the soundness of the Government's position that 5334(b) is inapplicable to promotions from the Wage System to the General Schedule. The judgment of the Court of Claims is reversed. It is so ordered. |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | The Federal Trade Commission filed an administrative complaint against six of the Nation's largest title insurance *625 companies, alleging horizontal price fixing in their fees for title searches and title examinations. One company settled by consent decree, while five other firms continue to contest the matter. The Commission charged the title companies with violating 5(a)(1) of the Federal Trade Commission Act, 15 U.S. C. 45(a)(1), which prohibits "[u]nfair methods of competition in or affecting commerce." One of the principal defenses the companies assert is state-action immunity from antitrust prosecution, as contemplated in the line of cases beginning with The Commission rejected this defense, In re Ticor Title Ins. Co., 112 F. T. C. 344 (1989), and the firms sought review in the United States Court of Appeals for the Third Circuit. Ruling that state-action immunity was available under the state regulatory schemes in question, the Court of Appeals reversed. We granted certiorari. I Title insurance is the business of insuring the record title of real property for persons with some interest in the estate, including owners, occupiers, and lenders. A title insurance policy insures against certain losses or damages sustained by reason of a defect in title not shown on the policy or title report to which it refers. Before issuing a title insurance *626 policy, the insurance company or one of its agents performs a title search and examination. The search produces a chronological list of the public documents in the chain of title to the real property. The examination is a critical analysis or interpretation of the condition of title revealed by the documents disclosed through this search. The title search and examination are major components of the insurance company's services. There are certain variances from State to State and from policy to policy, but a brief summary of the functions performed by the title companies can be given. The insurance companies exclude from coverage defects uncovered during the search; that is, the insurers conduct searches in order to inform the insured and to reduce their own liability by identifying and excluding known risks. The insured is protected from some losses resulting from title defects not discoverable from a search of the public records, such as forgery, missing heirs, previous marriages, impersonation, or confusion in names. They are protected also against errors or mistakes in the search and examination. Negligence need not be proved in order to recover. Title insurance also includes the obligation to defend in the event that an insured is sued by reason of some defect within the scope of the policy's guarantee. The title |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | defect within the scope of the policy's guarantee. The title insurance industry earned $1.35 billion in gross revenues in 1982, and respondents accounted for 57 percent of that amount. Four of respondents are the nation's largest title insurance companies: Ticor Title Insurance Co., with 16.5 percent of the market; Chicago Title Insurance Co., with 12.8 percent; Lawyers Title Insurance Co., with 12 percent; and SAFECO Title Insurance Co. (now operating under the name Security Union Title Insurance Co.), with 10.3 percent. Stewart Title Guarantee Co., with 5.4 percent of the market, is the country's eighth largest title insurer, with a strong position in the West and Southwest. App. to Pet. for Cert. 145a. *627 The Commission issued an administrative complaint in 1985. Horizontal price fixing was alleged in these terms: "`Respondents have agreed on the prices to be charged for title search and examination services or settlement services through rating bureaus in various states. Examples of states in which one or more of the respondents have fixed prices with other respondents or other competitors for all or part of their search and examination services or settlement services are Arizona, Connecticut, Idaho, Louisiana, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Wisconsin and Wyoming.' " 112 F. T. C., at 346. The Commission did not challenge the insurers' practice of setting uniform rates for insurance against the risk of loss from defective titles, but only the practice of setting uniform rates for the title search, examination, and settlement, aspects of the business which, the Commission alleges, do not involve insurance. Before the Administrative Law Judge (ALJ), respondents defended against liability on three related grounds. First, they maintained that the challenged conduct is exempt from antitrust scrutiny under the McCarran-Ferguson Act, 15 U.S. C. 1012(b), which confers antitrust immunity over the "business of insurance" to the extent regulated by state law. Second, they argued that their collective ratemaking activities are exempt under the NoerrPennington doctrine, which places certain "[j]oint efforts to influence public officials" beyond the reach of the antitrust laws. Mine ; Eastern Railroad Presidents Third, respondents contended their activities are entitled to stateaction immunity, which permits anticompetitive conduct if authorized and supervised by state officials. See California Retail Liquor Dealers ; App. to Pet. for Cert. 218a. As to one State, Ohio, respondents contended that the rates for title search, examination, and settlement had not been set by a rating bureau. Title insurance company rates and practices in 13 States were the subject of the initial complaint. Before the matter was decided by the ALJ, the Commission declined |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | the matter was decided by the ALJ, the Commission declined to pursue its complaint with regard to fees in five of these States: Louisiana, New Mexico, New York, Oregon, and Wyoming. Upon the recommendation of the ALJ, the Commission did not pursue its complaint with regard to fees in two additional States, Idaho and Ohio. This left six States in which the Commission found antitrust violations, but in two of these States, New Jersey and Pennsylvania, the Commission conceded the issue on which certiorari was sought here, so the regulatory regimes in these two States are not before us. Four States remain in which violations were alleged: Connecticut, Wisconsin, Arizona, and Montana. The ALJ held that the rates for search and examination services had been fixed in these four States. For reasons we need not pause to examine, the ALJ rejected the McCarranFerguson and Noerr-Pennington defenses. The ALJ then turned his attention to the question of state-action immunity. A summary of the ALJ's extensive findings on this point is necessary for a full understanding of the decisions reached at each level of the proceedings in the case. Rating bureaus are private entities organized by title insurance companies to establish uniform rates for their members. The ALJ found no evidence that the collective setting of title insurance rates through rating bureaus is a way of pooling risk information. Indeed, he found no evidence that any title insurer sets rates according to actuarial loss experience. Instead, the ALJ found that the usual practice is for rating bureaus to set rates according to profitability studies that focus on the costs of conducting searches and examinations. Uniform rates are set notwithstanding differences in *629 efficiencies and costs among individual members. App. to Pet. for Cert. 183a184a. The ALJ described the regulatory regimes for title insurance rates in the four States still at issue. In each one, the title insurance rating bureau was licensed by the State and authorized to establish joint rates for its members. Each of the four States used what has come to be called a "negative option" system to approve rate filings by the bureaus. Under a negative option system, the rating bureau filed rates for title searches and title examinations with the state insurance office. The rates became effective unless the State rejected them within a specified period, such as 30 days. Although the negative option system provided a theoretical mechanism for substantive review, the ALJ determined, after making detailed findings regarding the operation of each regulatory regime, that the rate filings were subject to minimal scrutiny by state regulators. |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | rate filings were subject to minimal scrutiny by state regulators. In Connecticut the State Insurance Department has the authority to audit the rating bureau and hold hearings regarding rates, but it has not done so. The Connecticut rating bureau filed only two major rate increases, in 1966 and in 1981. The circumstances behind the 1966 rate increase are somewhat obscure. The ALJ found that the Insurance Department asked the rating bureau to submit additional information justifying the increase, and later approved the rate increase although there is no evidence the additional information was provided. In 1981 the Connecticut rating bureau filed for a 20 percent rate increase. The factual background for this rate increase is better developed though the testimony was somewhat inconsistent. A state insurance official testified that he reviewed the rate increase with care and discussed various components of the increase with the rating bureau. The same official testified, however, that he lacked the authority to question certain expense data he considered quite high. at 189a195a. *630 In Wisconsin the State Insurance Commissioner is required to examine the rating bureau at regular intervals and authorized to reject rates through a process of hearings. Neither has been done. The Wisconsin rating bureau made major rate filings in 1971, 1981, and 1982. The 1971 rate filing was approved in 1971 although supporting justification, which had been requested by the State Insurance Commissioner, was not provided until 1978. The 1981 rate filing requested an 11 percent rate increase. The increase was approved after the office of the Insurance Commissioner checked the supporting data for accuracy. No one in the agency inquired into insurer expenses, though an official testified that substantive scrutiny would not be possible without that inquiry. The 1982 rate increase received but a cursory reading at the office of the Insurance Commissioner. The supporting materials were not checked for accuracy, though in the absence of an objection by the agency, the rate increase went into effect. at 196a200a. In Arizona the Insurance Director was required to examine the rating bureau at least once every five years. It was not done. In 1980 the State Insurance Department announced a comprehensive investigation of the rating bureau. It was not conducted. The rating bureau spent most of its time justifying its escrow rates. Following conclusion in 1981 of a federal civil suit challenging the joint fixing of escrow rates, the rating bureau went out of business without having made any major rate filings, though it had proposed minor rate adjustments. at 200a205a. In Montana the rating bureau made its only major rate |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | In Montana the rating bureau made its only major rate filing in 1983. In connection with it, a representative of the rating bureau met with officials of the State Insurance Department. He was told that the filed rates could go into immediate effect though further profit data would have to be provided. The ALJ found no evidence that the additional data were furnished. at 211a214a. *631 To complete the background, the ALJ observed that none of the rating bureaus are now active. The respondents abandoned them between 1981 and 1985 in response to numerous private treble-damages suits, so by the time the Commission filed its formal complaint in 1985, the rating bureaus had been dismantled. at 195a, 200a, 205a, 208a. The ALJ held that the case is not moot, though, because nothing would preclude respondents from resuming the conduct challenged by the Commission. at 246a247a. See United These factual determinations established, the ALJ addressed the two-part test that must be satisfied for stateaction immunity under the antitrust laws, the test we set out in California Retail Liquor Dealers A state law or regulatory scheme cannot be the basis for antitrust immunity unless, first, the State has articulated a clear and affirmative policy to allow the anticompetitive conduct, and second, the State provides active supervision of anticompetitive conduct undertaken by private actors. The Commission having conceded that the first part of the test was satisfied in the four States still at issue, the immunity question, beginning with the hearings before the ALJ and in all later proceedings, has turned upon the proper interpretation and application of `s active supervision requirement. The ALJ found the active supervision test was met in Arizona and Montana but not in Connecticut or Wisconsin. App. to Pet. for Cert. 248a. On review of the ALJ's decision, the Commission held that none of the four States had conducted sufficient supervision, so that the title companies were not entitled to immunity in any of those jurisdictions. at 47a. The Court of Appeals for the Third Circuit disagreed with the Commission, adopting the approach of the First Circuit in New England Motor Rate Bureau, which *632 had held that the existence of a state regulatory program, if staffed, funded, and empowered by law, satisfied the requirement of active supervision. Under this standard, the Court of Appeals for the Third Circuit ruled that the active state supervision requirement was met in all four States and held that the respondents' conduct was entitled to state-action immunity in each of We granted certiorari to consider two questions: First, whether the Third Circuit |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | certiorari to consider two questions: First, whether the Third Circuit was correct in its statement of the law and in its application of law to fact, and second, whether the Third Circuit exceeded its authority by departing from the factual findings entered by the ALJ and adopted by the Commission. Before this Court, the parties have confined their briefing on the first of these questions to the regulatory regimes of Wisconsin and Montana, and focused on the regulatory regimes of Connecticut and Arizona in briefing on the second question. We now reverse the Court of Appeals under the first question and remand for further proceedings under the second. II The preservation of the free market and of a system of free enterprise without price fixing or cartels is essential to economic freedom. United A national policy of such a pervasive and fundamental character is an essential part of the economic and legal system within which the separate States administer their own laws for the protection and advancement of their people. Continued enforcement of the national antitrust policy grants the States more freedom, not less, in deciding whether to subject discrete parts of the economy to additional regulations and controls. Against this background, in we upheld a state-supervised, market sharing scheme against a Sherman Act challenge. We announced the doctrine that federal antitrust laws are subject to supersession by state regulatory *633 programs. Our decision was grounded in principles of federalism. The principle of freedom of action for the States, adopted to foster and preserve the federal system, explains the later evolution and application of the Parker doctrine in our decisions in and In we invalidated a California statute forbidding licensees in the wine trade to sell below prices set by the producer. There we announced the two-part test applicable to instances where private parties participate in a price-fixing regime. "First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself." 445 U.S., confirms that while a State may not confer antitrust immunity on private persons by fiat, it may displace competition with active state supervision if the displacement is both intended by the State and implemented in its specific details. Actual state involvement, not deference to private price-fixing arrangements under the general auspices of state law, is the precondition for immunity from federal law. Immunity is conferred out of respect for ongoing regulation by the State, not out of respect for the economics of price restraint. In we found that the intent to restrain prices |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | restraint. In we found that the intent to restrain prices was expressed with sufficient precision so that the first part of the test was met, but that the absence of state participation in the mechanics of the price posting was so apparent that the requirement of active supervision had not been met. The rationale was further elaborated in In it had been alleged that private physicians participated in the State's peer review system in order to injure or destroy competition by denying hospital privileges to a physician who had begun a competing clinic. We referred to the purpose of preserving the State's own administrative *634 policies, as distinct from allowing private parties to foreclose competition, in the following passage: "The active supervision requirement stems from the recognition that where a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State.The requirement is designed to ensure that the state-action doctrine will shelter only the particular anticompetitive acts of private parties that, in the judgment of the State, actually further state regulatory policies. To accomplish this purpose, the active supervision requirement mandates that the State exercise ultimate control over the challenged anticompetitive conduct. The mere presence of some state involvement or monitoring does not suffice. The active supervision prong of the test requires that state officials have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy. Absent such a program of supervision, there is no realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests." -101 Because the particular anticompetitive conduct at issue in had not been supervised by governmental actors, we decided that the actions of the peer review committee were not entitled to state-action immunity. Our decisions make clear that the purpose of the active supervision inquiry is not to determine whether the State has met some normative standard, such as efficiency, in its regulatory practices. Its purpose is to determine whether the State has exercised sufficient independent judgment and control so that the details of the rates or prices have been established as a product of deliberate state intervention, not *635 simply by agreement among private parties. Much as in causation inquiries, the analysis asks whether the State has played a substantial role in determining the specifics of the economic policy. The question is not how well state regulation works but whether the anticompetitive scheme is the State's own. |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | works but whether the anticompetitive scheme is the State's own. Although the point bears but brief mention, we observe that our prior cases considered state-action immunity against actions brought under the Sherman Act, and this case arises under the Federal Trade Commission Act. The Commission has argued at other times that state-action immunity does not apply to Commission action under 5 of the Federal Trade Commission Act, 15 U.S. C. 45. See U. S. Bureau of Consumer Protection, Staff Report to the Federal Trade Commission on Prescription Drug Price Disclosures, Chs. VI(B) and (C) (1975); see also Note, The State Action Exemption and Antitrust Enforcement under the Federal Trade Commission Act, A leading treatise has expressed its skepticism of this view. See 1 P. Areeda & D. Turner, Antitrust Law ¶ 218 We need not determine whether the antitrust statutes can be distinguished on this basis, because the Commission does not assert any superior pre-emption authority in the instant matter. We apply our prior cases to the one before us. Respondents contend that principles of federalism justify a broad interpretation of state-action immunity, but there is a powerful refutation of their viewpoint in the briefs that were filed in this case. The State of Wisconsin, joined by Montana and 34 other States, has filed a brief as amici curiae on the precise point. These States deny that respondents' broad immunity rule would serve the States' best interests. We are in agreement with the amici submission. If the States must act in the shadow of state-action immunity whenever they enter the realm of economic regulation, then our doctrine will impede their freedom of action, not advance it. The fact of the matter is that the States regulate *636 their economies in many ways not inconsistent with the antitrust laws. For example, Oregon may provide for peer review by its physicians without approving anticompetitive conduct by See 486 U. S., Or Michigan may regulate its public utilities without authorizing monopolization in the market for electric light bulbs. See So we have held that state-action immunity is disfavored, much as are repeals by implication. By adhering in most cases to fundamental and accepted assumptions about the benefits of competition within the framework of the antitrust laws, we increase the States' regulatory flexibility. States must accept political responsibility for actions they intend to undertake. It is quite a different matter, however, for federal law to compel a result that the States do not intend but for which they are held to account. Federalism serves to assign political responsibility, not to obscure it. Neither federalism |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | to assign political responsibility, not to obscure it. Neither federalism nor political responsibility is well served by a rule that essential national policies are displaced by state regulations intended to achieve more limited ends. For States which do choose to displace the free market with regulation, our insistence on real compliance with both parts of the test will serve to make clear that the State is responsible for the price fixing it has sanctioned and undertaken to control. Respondents contend that these concerns are better addressed by the requirement that the States articulate a clear policy to displace the antitrust laws with their own forms of economic regulation. This contention misapprehends the close relation between `s two elements. Both are directed at ensuring that particular anticompetitive mechanisms operate because of a deliberate and intended state policy. See In the usual case, `s requirement that the State articulate a clear policy shows little more than that the State has not acted through inadvertence; *637 it cannot alone ensure, as required by our precedents, that particular anticompetitive conduct has been approved by the State. It seems plain, moreover, in light of the amici curiae brief to which we have referred, that sole reliance on the requirement of clear articulation will not allow the regulatory flexibility that these States deem necessary. For States whose object it is to benefit their citizens through regulation, a broad doctrine of state-action immunity may serve as nothing more than an attractive nuisance in the economic sphere. To oppose these pressures, sole reliance on the requirement of clear articulation could become a rather meaningless formal constraint. III In the case before us, the Court of Appeals relied upon a formulation of the active supervision requirement articulated by the First Circuit: "`Where the state's program is in place, is staffed and funded, grants to the state officials ample power and the duty to regulate pursuant to declared standards of state policy, is enforceable in the state's courts, and demonstrates some basic level of activity directed towards seeing that the private actors carry out the state's policy and not simply their own policy, more need not be established.' " 922 F.2d, at 1, quoting New England Motor Rate Bureau, 908 F. 2d, Based on this standard, the Third Circuit ruled that the active supervision requirement was met in all four States, and held that the respondents' conduct was entitled to stateaction immunity from antitrust While in theory the standard articulated by the First Circuit might be applied in a manner consistent with our precedents, it seems to us insufficient to |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | consistent with our precedents, it seems to us insufficient to establish the requisite level of active supervision. The criteria set forth by the First Circuit may have some relevance as the beginning *638 point of the active state supervision inquiry, but the analysis cannot end there. Where prices or rates are set as an initial matter by private parties, subject only to a veto if the State chooses to exercise it, the party claiming the immunity must show that state officials have undertaken the necessary steps to determine the specifics of the price-fixing or ratesetting scheme. The mere potential for state supervision is not an adequate substitute for a decision by the State. Under these standards, we must conclude that there was no active supervision in either Wisconsin or Montana. Respondents point out that in Wisconsin and Montana the rating bureaus filed rates with state agencies and that in both States the so-called negative option rule prevailed. The rates became effective unless they were rejected within a set time. It is said that as a matter of law in those States inaction signified substantive approval. This proposition cannot be reconciled, however, with the detailed findings, entered by the ALJ and adopted by the Commission, which demonstrate that the potential for state supervision was not realized in fact. The ALJ found, and the Commission agreed, that at most the rate filings were checked for mathematical accuracy. Some were unchecked altogether. In Montana, a rate filing became effective despite the failure of the rating bureau to provide additional requested information. In Wisconsin, additional information was provided after a lapse of seven years, during which time the rate filing remained in effect. These findings are fatal to respondents' attempts to portray the state regulatory regimes as providing the necessary component of active supervision. The findings demonstrate that, whatever the potential for state regulatory review in Wisconsin and Montana, active state supervision did not occur. In the absence of active supervision in fact, there can be no state-action immunity for what were otherwise private price-fixing arrangements. And as in the availability of state judicial review could not fill the void. Because of the state agencies' limited role and *639 participation, state judicial review was likewise limited. See -105. Our decision in Southern Motor Carriers Rate Conference, though it too involved a negative option regime, is not to the contrary. The question there was whether the first part of the test was met, the Government's contention being that a pricing policy is not an articulated one unless the practice is compelled. We rejected that assertion |
Justice Kennedy | 1,992 | 4 | majority | FTC v. Ticor Title Ins. Co. | https://www.courtlistener.com/opinion/112749/ftc-v-ticor-title-ins-co/ | one unless the practice is compelled. We rejected that assertion and undertook no real examination of the active supervision aspect of the case, for the Government conceded that the second part of the test had been met. The concession was against the background of a District Court determination that, although submitted rates could go into effect without further state activity, the State had ordered and held ratemaking hearings on a consistent basis, using the industry submissions as the beginning point. See United In the case before us, of course, the Commission concedes the first part of the requirement and litigates the second; and there is no finding of substantial state participation in the ratesetting scheme. This case involves horizontal price fixing under a vague imprimatur in form and agency inaction in fact. No antitrust offense is more pernicious than price fixing. In this context, we decline to formulate a rule that would lead to a finding of active state supervision where in fact there was none. Our decision should be read in light of the gravity of the antitrust offense, the involvement of private actors throughout, and the clear absence of state supervision. We do not imply that some particular form of state or local regulation is required to achieve ends other than the establishment of uniform prices. Cf. We do *640 not have before us a case in which governmental actors made unilateral decisions without participation by private actors. Cf. And we do not here call into question a regulatory regime in which sampling techniques or a specified rate of return allow state regulators to provide comprehensive supervision without complete control, or in which there was an infrequent lapse of state supervision. Cf. 324 Liquor In the circumstances of this case, however, we conclude that the acts of respondents in the States of Montana and Wisconsin are not immune from antitrust IV In granting certiorari we undertook to review the further contention by the Commission that the Court of Appeals was incorrect in disregarding the Commission's findings as to the extent of state supervision. The parties have focused their briefing on this question on the regulatory schemes of Connecticut and Arizona. We think the Court of Appeals should have the opportunity to reexamine its determinations with respect to these latter two States in light of the views we have expressed. 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 Thomas | 2,018 | 1 | concurring | Byrd v. United States | https://www.courtlistener.com/opinion/4497658/byrd-v-united-states/ | Although I have serious doubts about the “reasonable expectation of privacy” test from I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. In my view, it would be especially “unwise” to reach that issue, ante, at 7, because the parties fail to adequately address several threshold questions. The Fourth Amendment guarantees the people’s right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” With this language, the Fourth Amendment gives “each person the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.” Minnesota v. Carter, The issue, then, is whether Byrd can prove that the rental car was his effect. That issue seems to turn on at least three threshold questions. First, what kind of property interest do indi- 2 BYRD v. UNITED STATES THOMAS, J., concurring viduals need before something can be considered “their effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropri- ate case, I would welcome briefing and argument on these questions. Cite as: 584 U. S. (2018) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–1371 TERRENCE BYRD, PETITIONER v. |
Justice Burger | 1,982 | 12 | majority | Xerox Corp. v. County of Harris | https://www.courtlistener.com/opinion/110816/xerox-corp-v-county-of-harris/ | We noted probable jurisdiction to decide whether a state may impose nondiscriminatory ad valorem personal property taxes on imported goods stored under bond in a customs warehouse and destined for foreign markets. The Texas Court of Civil Appeals held such taxes constitutional. I Appellant Xerox Corp. is a New York corporation engaged in the business of manufacturing and selling business machines. Its operations span the globe, and it has established *147 affiliates in foreign countries to facilitate foreign sales. It has assembly plants and production facilities in Mexico. Xerox manufactured parts for copying machines in Colorado and New York which were shipped to Mexico City, Mexico, for assembly by its affiliate there. The copiers assembled in Mexico were designed for sale in the Latin American market, and all printing on the machines and instructions accompanying them were in Spanish or Portuguese. Most of the copiers operated on electric current of 50 cycles per second, rather than the 60 cycles per second that is standard in the United States. Many of the copiers assembled by appellant's affiliate in Mexico City were not approved by either United Laboratories or the Canadian Standards Association, as required for sale in the United States. To convert the copiers for domestic sale would have cost approximately $100 per copier. After assembly in Mexico, the copiers were transported by a customs bonded trucking company to the Houston Terminal Warehouse in Houston, Tex.,[1] a Class 3 customs bonded warehouse. There they were stored for periods ranging from a few days to three years while awaiting sale and shipment to Xerox affiliates in Latin America. The copiers remained in the warehouse, segregated from other merchandise, until a shipment order was received. When Xerox received an order, it would transport the copiers under bond to either the Port of Houston or the Port of Miami, where they were loaded on board vessels for shipment to Latin America. The copiers remained under the continuous control and supervision of the United States Customs Service from the time they entered the bonded warehouse until they cleared *148 United States Customs at the Port of Houston or the Port of Miami for export.[2] None of the copiers assembled in Mexico and stored in Houston were ever sold to customers for domestic use; all were ultimately sold abroad. Consequently, Xerox paid no import duties on them.[3] The local authorities did not assess any taxes on the copiers stored under customs bond in 4 and 5. In 7, the city of Houston[4] assessed ad valorem personal property taxes of $156,728 on the copiers stored in the |
Justice Burger | 1,982 | 12 | majority | Xerox Corp. v. County of Harris | https://www.courtlistener.com/opinion/110816/xerox-corp-v-county-of-harris/ | property taxes of $156,728 on the copiers stored in the Houston warehouse during 7.[5] The County of Harris[6] followed suit, assessing $55,969 in taxes for 7 and also assessing $48,426 in back taxes for 6, for a total of $104,395. As soon as Xerox learned that the local authorities intended to tax its Mexican-assembled copiers, it shipped all the machines to a foreign trade zone in Buffalo, N. Y., from which it continued to fill orders for shipment to Latin America. *149 Declaratory and injunctive relief was sought in state court both from the taxes already assessed and such taxes as appellees might impose in the future. Xerox claimed that the taxes in question were unconstitutional because they violated the Import-Export Clause and the Commerce Clause of the Constitution. Art. I., 10, cl. 2; Art. I, 8, cl. 3. Appellees counterclaimed for the taxes assessed. The trial court held that the taxes assessed by appellees violated both the Import-Export and Commerce Clauses, and it granted judgment to Xerox. The Texas Court of Civil Appeals, First District, reversed, holding that the taxes violated neither the Import-Export Clause nor the Commerce Clause. Alternatively, it held that the trial court had violated Texas Rule of Civil Procedure 683 in granting injunctive relief. Finally, it granted judgment to appellees on their counterclaims in the amount of $131,311 plus penalties and interest to Harris County and $156,728 plus penalties and interest to the city of Houston. The Texas Supreme Court denied Xerox's application for a writ of error and this appeal followed. We noted probable jurisdiction, and we reverse. II A A preliminary question is whether this Court has jurisdiction over the appeal. Appellees argue that this Court lacks jurisdiction since the decision of the Texas court reversing the grant of an injunction rested on an independent and adequate state ground. However, an indispensable predicate to an award of judgment to the appellees on their counterclaims was a determination that the taxes at issue were permissible under the United States Constitution; the Texas Court of Civil Appeals so held. It is not claimed that any independent and adequate state-law ground supports that holding. We therefore have jurisdiction to review that judgment. 28 U.S. C. 1257(2). *150 B Pursuant to its powers under the Commerce Clause, Congress established a comprehensive customs system which includes provisions for Government-supervised bonded warehouses houses where imports may be stored duty free for prescribed periods. At any time during that period the goods may be withdrawn and reexported without payment of duty. Only if the goods are withdrawn for domestic sale |
Justice Burger | 1,982 | 12 | majority | Xerox Corp. v. County of Harris | https://www.courtlistener.com/opinion/110816/xerox-corp-v-county-of-harris/ | duty. Only if the goods are withdrawn for domestic sale or stored beyond the prescribed period does any duty become due. 19 U.S. C. 1557(a) (6 ed., Supp. V). While the goods are in bonded warehouses they are in the joint custody of the United States Customs Service and the warehouse proprietor and under the continuous control and supervision of the local customs officers. 19 U.S. C. 1555. Detailed regulations control every aspect of the manner in which the warehouses are to be operated. 19 CFR 19.1-19.6 Government-regulated, bonded warehouses have been a link in the chain of foreign commerce since "a very early period in our history." A forerunner of the present statute was the Warehousing Act of 1846, A major objective of the warehousing system was to allow importers to defer payment of duty until the goods entered the domestic market or were exported. The legislative history explains that Congress sought to reinstate. "the sound though long neglected maxim of Adam Smith, `That every tax ought to be levied at the time and in the manner most convenient for the contributor to pay it;' [by providing] that the tax shall only be paid when the imports are entered for consumption" H. R. Rep. No. 411, 29th Cong., 1st Sess., 3 (1846). The Act stimulated foreign commerce by allowing goods in transit in foreign commerce to remain in secure storage, duty free, until they resumed their journey in export. The geographic location of the country made it a convenient place for *151 transshipment of goods within the Western Hemisphere and across both the Atlantic and the Pacific. A consequence of making the United States a center of world commerce was that "our carrying trade would be vastly increased; that ship-building would be stimulated; that many foreign markets would be supplied, wholly or in part, by us with merchandise now furnished from the warehouses of Europe; that the industry of our seaports would be put in greater activity; [and] that the commercial transactions of the country would be facilitated" Cong. Globe, 29th Cong., 1st Sess., App. 792 (1846) (remarks of Sen. Dix). To these ends, Congress was willing to waive all duty on goods that were reexported from the warehouse, and to defer, for a prescribed period, the duty on goods destined for American consumption. This was no small sacrifice at a time when customs duties made up the greater part of federal revenues,[7] but its objective was to stimulate business for American industry and work for Americans. In short, Congress created secure and duty-free enclaves under federal control in |
Justice Burger | 1,982 | 12 | majority | Xerox Corp. v. County of Harris | https://www.courtlistener.com/opinion/110816/xerox-corp-v-county-of-harris/ | Congress created secure and duty-free enclaves under federal control in order to encourage merchants here and abroad to make use of American ports. The question is whether it would be compatible with the comprehensive scheme Congress enacted to effect these goals if the states were free to tax such goods while they were lodged temporarily in Government-regulated bonded storage in this country. In the City of New York sought to impose a sales tax on imported petroleum that was refined into fuel oil in New York and sold as ships' stores to vessels bound abroad. The crude oil was *152 imported under bond and refined in a customs bonded manufacturing warehouse and was free from all duties. We struck down the state tax, finding it pre-empted by the congressional scheme. The Court determined that the purpose of the exemption from the tax normally laid upon importation of crude petroleum was "to encourage importation of the crude oil for [refinement into ships' stores] and thus to enable American refiners to meet foreign competition and to recover trade which had been lost by the imposition of the tax." ; see also The Court went on to note that, in furtherance of this purpose, "Congress provided for the segregation of the imported merchandise from the mass of goods within the state, prescribed the procedure to insure its use for the intended purpose, and by reference confirmed and adopted customs regulations prescribing that the merchandise, while in bonded warehouse, should be free from state taxation." -429. The Court concluded that "the purpose of the Congressional regulation of the commerce would fail if the state were free at any stage of the transaction to impose a tax which would lessen the competitive advantage conferred on the importer by Congress, and which might equal or exceed the remitted import duty." In so deciding, the Court expressly declined to rely on the customs regulation "prescribing the exemption from state taxation," holding that the regulation merely stated "what is implicit in the Congressional regulation of commerce presently involved." Ibid.[8] *153 The analysis in McGoldrick applies with full force here. First, Congress sought, in the statutory scheme reviewed in McGoldrick, to benefit American industry by remitting duties otherwise due. The import tax on crude oil was remitted to benefit oil refiners employing labor at refineries within the United States, whose products would not be sold in domestic commerce. Here, the remission of duties benefited those shippers using American ports as transshipment centers. Second, the system of customs regulation is as pervasive for the stored goods in the present case |
Justice Burger | 1,982 | 12 | majority | Xerox Corp. v. County of Harris | https://www.courtlistener.com/opinion/110816/xerox-corp-v-county-of-harris/ | as pervasive for the stored goods in the present case as it was in McGoldrick for the refined petroleum. In both cases, the imported goods were segregated in warehouses under continual federal custody and supervision. Finally, the state tax was large enough in each case to offset substantially the very benefits Congress intended to confer by remitting the duty.[9] In short, freedom from state taxation is as necessary to the congressional scheme here as it was in McGoldrick. Although there are factual distinctions between this case and McGoldrick, they are distinctions without a legal difference. We can discern no relevance to the issue of congressional intent in the fact that the fuel oil in McGoldrick could be sold only as ships' stores whereas Xerox had the option to pay the duty and withdraw the copiers for domestic sale, or that in McGoldrick the city sought to impose a sales tax and here appellees assessed a property tax. A similar conclusion was reached in District of There, the Court of Appeals held that a wholesaler of imported alcoholic beverages was not liable *154 for District of Columbia excise taxes on the sale of such beverages to foreign embassies while the beverages were stored in a customs bonded warehouse. The court reasoned that Congress intended to make customs bonded warehouses federal enclaves free of state taxation and that although the imported goods were physically within the District of Columbia, they were not subject to its taxing jurisdiction until they were removed from the warehouse. Since the sales took place prior to removal, the District could not tax those sales. The Court of Appeals quoted with approval the following language of the Tax Court: " `The idea of bonded warehouses and their use by the United States custom authorities negatives the proposition that at the time of sale the alcoholic beverages were in the possession of the petitioner [the corporation]. True it is that the private bonded warehouse was physically in the District of Columbia; and the liquors were stored therein; and in that sense they were in the District. In law, however, they were still without that jurisdiction, and did not become subject thereto until they had been withdrawn from the private bonded warehouse and removed from the control of the customs official.' " -820. International Distributing Corp. merely confirms what this Court said in 1877 in 95 U. S., at -198: "Congress did not regard the importation as complete while the goods remained in the custody of the proper officers of customs." Accordingly, we hold that state property taxes on goods |
Justice Souter | 1,994 | 20 | concurring | National Organization for Women, Inc. v. Scheidler | https://www.courtlistener.com/opinion/112923/national-organization-for-women-inc-v-scheidler/ | I join the Court's opinion and write separately to explain why the First Amendment does not require reading an economic-motive requirement into the Racketeer Influenced and Corrupt Organizations Act (RICO or statute), and to stress that the Court's opinion does not bar First Amendment challenges to RICO's application in particular cases. Several respondents and amici argue that we should avoid the First Amendment issues that could arise from allowing RICO to be applied to protest organizations by construing the statute to require economic motivation, just as we have previously interpreted other generally applicable statutes so as to avoid First Amendment problems. See, e. g., Eastern Railroad Presidents ; see also The argument is meritless in this case, though, for this principle of statutory construction applies only when the meaning of a statute is in doubt, see and here "the statutory language is unambiguous," ante, at 261. Even if the meaning of RICO were open to debate, however, it would not follow that the statute ought to be read to include an economic-motive requirement, since such a requirement would correspond only poorly to free-speech concerns. Respondents and amici complain that, unless so limited, the statute permits an ideological organization's opponents to label its vigorous expression as RICO predicate acts, thereby availing themselves of powerful remedial provisions that could destroy the organization. But an economic-motive requirement would protect too much with respect to First Amendment interests, since it would keep RICO from reaching ideological entities whose members commit acts of violence we need not fear chilling. An economic-motive requirement might also prove to be under-protective, in that entities engaging in vigorous but fully protected expression might fail the proposed economic-motive test (for even protest movements need money) and so be left exposed to harassing RICO suits. An economic-motive requirement is, finally, unnecessary, because legitimate free-speech claims may be raised and addressed in individual RICO cases as they arise. Accordingly, it is important to stress that nothing in the Court's opinion precludes a RICO defendant from raising the First Amendment in its defense in a particular case. Conduct alleged to amount to Hobbs Act extortion, for example, or one of the other, somewhat elastic RICO predicate acts may turn out to be fully protected First Amendment activity, entitling the defendant to dismissal on that basis. See And even in a case where a RICO violation has been validly established, the First Amendment may limit the relief that can be granted against an organization otherwise engaging in protected expression. See See also ; Oregon Natural Resources This is not the place to catalog the |
Justice Douglas | 1,973 | 10 | concurring | Department of Agriculture v. Moreno | https://www.courtlistener.com/opinion/108856/department-of-agriculture-v-moreno/ | Appellee Jacinta Moreno is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. The two share common living expenses, Mrs. Sanchez helping to care for this appellee. Appellee's monthly income is $75, derived from public assistance, and Mrs. Sanchez' is $133, also derived from public assistance. This household pays $95 a month for rent, of which appellee pays $40, and $40 a month for gas and electricity, of which appellee pays $10. Appellee spends $10 a month for transportation to a hospital for regular visits and $5 a month for laundry. That leaves her $10 a month for food and other necessities. Mrs. Sanchez and the three children received $10 worth of food stamps per month for $1. But under the "unrelated" person *539 provision of the Act,[1] she will be cut off if appellee Moreno continues to live with her. Appellee Sheilah Hejny is married and has three children, ages two to five. She and her husband took in a 20-year-old girl who is unrelated to them. She shares in the housekeeping. The Hejnys pay $14 a month and receive $144 worth of food stamps. The Hejnys comprise an indigent household. But if they allow the 20-year-old girl to live with them, they too will be cut off from food stamps by reason of the "unrelated" person provision. *540 Appellee Keppler has a daughter with an acute hearing deficiency who requires instruction in a school for the deaf. The school is in an area where the mother cannot afford to live. So she and her two minor children moved into a nearby apartment with a woman who, like appellee' Keppler, is on public assistance but who is not related to her. As a result appellee Keppler's food stamps have been cut off because of the "unrelated" person provision. These appellees instituted a class action to enjoin the enforcement of the "unrelated" person provision of the Act. The "unrelated" person provision of the Act creates two classes of persons for food stamp purposes: one class is composed of people who are all related to each other and all in dire need; and the other class is composed of households that have one or more persons unrelated to the others but have the same degree of need as those in the first class. The first type of household qualifies for relief, the second cannot qualify, no matter the need. It is that application of the Act which is said to violate the conception of equal protection that is implicit in the Due Process Clause of the Fifth |
Justice Douglas | 1,973 | 10 | concurring | Department of Agriculture v. Moreno | https://www.courtlistener.com/opinion/108856/department-of-agriculture-v-moreno/ | is implicit in the Due Process Clause of the Fifth Amendment. The test of equal protection is whether the legislative line that is drawn bears "some rational relationship to a legitimate" governmental The requirement of equal protection denies government "the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective" of the enactment. This case involves desperately poor people with acute problems who, though unrelated, come together for mutual help and assistance. The choice of one's associates for social, political, race, or religious purposes is basic in our constitutional scheme. ; De ; ; ; It extends to "the associational rights of the members" of a trade union. Brotherhood of Railroad I suppose no one would doubt that an association of people working in the poverty field would be entitled to the same constitutional protection as those working in the racial, banking, or agricultural field. I suppose poor people holding a meeting or convention would be under the same constitutional umbrella as others. The dimensions of the "unrelated" person problem under the Food Stamp Act are in that category. As the facts of this case show, the poor are congregating in households where they can better meet the adversities of poverty. This banding together is an expression of the right of freedom of association that is very deep in our traditions. *542 Other like rights have been recognized that are only peripheral First Amendment rightsthe right to send one's child to a religious school, the right to study the German language in a private school, the protection of the entire spectrum of learning, teaching, and communicating ideas, the marital right of privacy. 31 U.S. 479, 42-43. As the examples indicate, these peripheral constitutional rights are exercised not necessarily in assemblies that congregate in halls or auditoriums but in discrete individual actions such as parents placing a child in the school of their choice. Taking a person into one's home because he is poor or needs help or brings happiness to the household is of the same dignity. Congress might choose to deal only with members of a family of one or two or three generations, treating it all as a unit. Congress, however, has not done that here. Concededly an individual living alone is not disqualified from the receipt of food stamp aid, even though there are other members of the family with whom he might theoretically live. Nor are common-law couples disqualified: they, like individuals living alone, may qualify under the Act |
Justice Douglas | 1,973 | 10 | concurring | Department of Agriculture v. Moreno | https://www.courtlistener.com/opinion/108856/department-of-agriculture-v-moreno/ | they, like individuals living alone, may qualify under the Act if they are poorwhether they have abandoned their wives and children and however antifamily their attitudes may be. In other words, the "unrelated" person provision was not aimed at the maintenance of normal family ties. It penalizes persons or families who have brought under their roof an "unrelated" needy person. It penalizes the poorest of the poor for doubling up against the adversities of poverty. But for the constitutional aspects of the problem, the "unrelated" person provision of the Act might well be sustained as a means to prevent fraud. Fraud is a concern of the Act. 7 U.S. C. 2023 (b) and (c). Able-bodied persons must register and accept work or lose their food stamp rights. 7 U.S. C. 2014 (c). I *543 could not say that this "unrelated" person provision has no "rational" relation to control of fraud. We deal here, however, with the right of association, protected by the First Amendment. People who are desperately poor but unrelated come together and join hands with the aim better to combat the crises of poverty. The need of those living together better to meet those crises is denied, while the need of households made up of relatives that is no more acute is serviced. Problems of the fisc, as we stated in U.S. 61, 633, are legitimate concerns of government. But government "may not accomplish such a purpose by invidious distinctions between classes of its citizens." The legislative history of the Act indicates that the "unrelated" person provision of the Act was to prevent "essentially unrelated individuals who voluntarily chose to cohabit and live off food stamps"[3]so-called "hippies" or "hippy communes"from participating in the food stamp program. As stated in the Conference Report,[4] the definition of household was "designed to prohibit food stamp assistance to communal `families' of unrelated individuals." The right of association, the right to invite the stranger into one's home is too basic in our constitutional regime to deal with roughshod. If there are abuses inherent in that pattern of living against which the food stamp program should be protected, the Act must be "narrowly drawn," to meet the precise end. The method adopted and applied to these cases makes 3 (e) of the Act unconstitutional by reason of the invidious discrimination between the two classes of needy persons. *544 is not opposed. It sustained a Maryland grant of welfare, against the claim of violation of equal protection, which placed an upper limit on the monthly amount any single family could receive. The claimants had large |
Justice Douglas | 1,973 | 10 | concurring | Department of Agriculture v. Moreno | https://www.courtlistener.com/opinion/108856/department-of-agriculture-v-moreno/ | amount any single family could receive. The claimants had large families so that their standard of need exceeded the actual grants. Their claim was that the grants of aid considered in light of the size of their families created an invidious discrimination against them and in favor of small needy families. The claim was rejected on the basis that state economic or social legislation had long been judged by a less strict standard than comes into play when constitutionally protected rights are involved. at 44-45. Laws touching social and economic matters can pass muster under the Equal Protection Clause though they are imperfect, the test being whether the classification has some "reasonable basis." Dandridge held that "the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." at 46. But for the First Amendment aspect of the case, Dandridge would control here. Dandridge, however, did not reach classifications touching on associational rights that lie in the penumbra of the First Amendment. Since the "unrelated" person provision is not directed to the maintenance of the family as a unit but treats impoverished households composed of relatives more favorably than impoverished households having a single unrelated person, it draws a line that can be sustained only on a showing of a "compelling" governmental interest. The "unrelated" person provision of the present Act has an impact on the rights of people to associate for lawful purposes with whom they choose. When state action "may have the effect of curtailing the freedom to *545 associate" it "is subject to the closest scrutiny." 357 U. S., at -461. The "right of the people peaceably to assemble" guaranteed by the First Amendment covers a wide spectrum of human interests including, as stated in at "political, economic, religious, or cultural matters." Banding together to combat the common foe of hunger is in that category. The case therefore falls within the zone represented by which held that a waiting period on welfare imposed by a State on the "inmigration of indigents" penalizing the constitutional right to travel could not be sustained absent a "compelling governmental interest." MR. |
Justice Stevens | 1,988 | 16 | majority | Yates v. Aiken | https://www.courtlistener.com/opinion/111976/yates-v-aiken/ | Petitioner and an accomplice robbed a country store in South Carolina in 1981. After petitioner left the store, a fight occurred in which the accomplice and the storekeeper's mother were both killed. Petitioner was convicted of murder and armed robbery and sentenced to death. His conviction and sentence were affirmed by the South Carolina Supreme Court in 1982. At his trial, petitioner testified that the victim had not even entered the store before he left and that he had not intended to kill or to harm anyone. The jury, however, was instructed "that malice is implied or presumed from the use of a deadly weapon."[1] A few months after petitioner's conviction was affirmed, the South Carolina Supreme Court held that it was error to give such an instruction. See Thereafter, petitioner sought a writ of habeas corpus from the South Carolina Supreme Court, arguing that the burden-shifting instruction given at his trial was unconstitutional under the state court's reasoning in Elmore and under our decision in While the application for habeas corpus was pending, we decided another *213 case involving a burden-shifting instruction, and petitioner promptly called that decision to the attention of the State Supreme Court. The court denied the writ without opinion. Petitioner then sought a writ of certiorari in this Court. We summarily vacated the judgment of the South Carolina Supreme Court and remanded the case "for further consideration in light of" On remand, the state court determined that the jury instruction at petitioner's trial "suffered from the same infirmities present in Elmore and addressed in" 290 S. C. 231, 233, Nevertheless, the court held that petitioner was not entitled to relief. As an explanation for its holding, the court stated that its decision in Elmore should not be applied retroactively to invalidate a conviction that was final when Elmore was decided. The opinion did not consider whether the decision in might apply retroactively and also did not discuss our decision in on which petitioner had relied. In dissent, Justice Finney reasoned that Elmore and should be applied retroactively because an instruction that shifts the burden of proof on an element of the offense particularly in a capital case substantially impairs the truth-finding function of the jury. Moreover, he reasoned, given our decision in in 1979, the case did not represent a significant change in the law.[2] *214 We granted certiorari because we were concerned that the South Carolina Supreme Court had not fully complied with our mandate. We now reverse. I Our order remanding the case for further consideration in the light of was |
Justice Stevens | 1,988 | 16 | majority | Yates v. Aiken | https://www.courtlistener.com/opinion/111976/yates-v-aiken/ | the case for further consideration in the light of was predicated entirely on the fact that petitioner's challenge to the jury instruction asserted a substantial federal question. Our opinion in Francis explained why a challenge of this kind is supported by the Federal Constitution: "The Due Process Clause of the Fourteenth Amendment `protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, [, ]. This `bedrock, "axiomatic and elementary" [constitutional] principle,' prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. ; ; ; see also The prohibition protects the `fundamental value determination of our society,' given voice in Justice Harlan's concurrence in Winship, that `it is far worse to convict an innocent man than to let a guilty man go free.' See" The portion of the state court's opinion concluding that the instruction in petitioner's case was infirm for the reasons "addressed *215 in Francis" was responsive to our mandate, but the discussion of the question whether the decision in Elmore should be applied retroactively was not. Our mandate contemplated that the state court would consider whether, as a matter of federal law, petitioner's conviction could stand in the light of Francis. Since the state court did not decide that question, we shall do so. II The South Carolina Attorney General submits that we should adopt Justice Harlan's theory that a newly announced constitutional rule should not be applied retroactively to cases pending on collateral review unless the rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or enunciates a procedural rule that is "implicit in the concept of ordered liberty," Under this theory, the Attorney General argues, petitioner would not be entitled to the benefit of our ruling in Franklin. We have already endorsed Justice Harlan's retroactivity analysis for cases pending on direct appeal, see ; United and we have noted, as Justice Harlan did, ; the important distinction between direct review and collateral review. Compare does not apply retroactively to cases on collateral review), with at -323 ; see, e. g., To decide this case, however, it is not necessary *216 to determine whether we should go further and adopt Justice Harlan's reasoning as to the retroactivity of cases announcing new constitutional rules to cases pending on collateral review. Although Justice Harlan believed that |
Justice Stevens | 1,988 | 16 | majority | Yates v. Aiken | https://www.courtlistener.com/opinion/111976/yates-v-aiken/ | cases pending on collateral review. Although Justice Harlan believed that most collateral attacks on final judgments should be resolved by reference to the state of the law at the time of the petitioner's conviction, he emphasized the proposition that many "new" holdings are merely applications of principles that were well settled at the time of conviction. As he explained in Desist: "The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a `new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context it appears very difficult to argue against the application of the `new' rule in all habeas cases since one could never say with any assurance that this Court would have ruled differently at the time the petitioner's conviction became final." -264. This reasoning, which we previously have endorsed,[3] is controlling in this case because our decision in Francis was *217 merely an application of the principle that governed our decision in which had been decided before petitioner's trial took place. We explicitly so held in Francis itself: "The question before the Court in this case is almost identical to that before the Court in Sandstrom: whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of state of mind,' by creating a mandatory presumption of intent upon proof by the State of other elements of the offense." " made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court's judgment is therefore affirmed." III Respondents also argue that South |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | Suppose a jury convicts a defendant of a crime carrying a sentence of five to ten years. And suppose the judge says he would sentence the defendant to five years, but because he finds that the defendant used a gun during the crime, he is going to add two years and sentence him to seven. No one thinks that this violates the defendant’s right to a jury trial in any way. Now suppose the legislature says that two years should be added to the five year minimum, if the judge finds that the defendant used a gun during the crime. Such a provi- sion affects the role of the judge—limiting his discretion— but has no effect on the role of the jury. And because it does not affect the jury’s role, it does not violate the jury trial guarantee of the Sixth Amendment. The Framers envisioned the Sixth Amendment as a pro- tection for defendants from the power of the Government. The Court transforms it into a protection for judges from the power of the legislature. For that reason, I respect- fully dissent. I In a steady stream of cases decided over the last 15 years, this Court has sought to identify the historical 2 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting understanding of the Sixth Amendment jury trial right and determine how that understanding applies to modern sentencing practice. Our key sources in this task have been 19th-century treatises and common law cases identi- fying which facts qualified as “elements” of a crime, and therefore had to be alleged in the indictment and proved to a jury beyond a reasonable doubt. See, e.g., v. New Jersey, (collecting sources); 1–518 (THOMAS, J., concur- ring) With remarkable uniformity, those author- ities provided that an element was “whatever is in law essential to the punishment sought to be inflicted.” 1 J. Criminal Procedure 50 (2d ed. 1872); see also (Clifford, J., dis- senting))); 1 at 55 (an indictment must include “any particular fact which the law makes essential to the punishment”). Judging that this common law rule best reflects what the Framers understood the Sixth Amendment jury right to protect, we have struck down sentencing schemes that were inconsistent with the rule. In for example, the defendant pleaded guilty to a crime that carried a maximum sentence of ten years. After his plea, however, the trial judge determined that the defendant had commit- ted the crime with a biased purpose. Under a New Jersey law, that finding allowed the judge to impose up to ten additional years in prison. Exercising that |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | impose up to ten additional years in prison. Exercising that authority, the judge sentenced the defendant to 12 years. 530 U. S., at 469–471. Because the sentence was two years longer than would have been possible without the finding of bias, that find- ing was “essential to the punishment” imposed. 1 ; see –492. Thus, Cite as: 570 U. S. (2013) 3 ROBERTS, C. J., dissenting in line with the common law rule, we held the New Jersey procedure unconstitutional. Subsequent cases have worked out how this principle applies in other contexts, such as capital sentencing re- gimes, state and federal sentencing guidelines, or criminal fines. See ; v. Washington, ; United ; Southern Union v. United States, 567 U. S. (2012). Through all of them, we have adhered to the rule, rooted in the common law under- standing described above, that we laid down in : “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ; see ; Booker, ; Southern Union at (slip op., at 3) ; see also at 588–589 (Sixth Amendment “does not permit a defendant to be ‘expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ ” (quoting at 483; alterations in original). We have embraced this 19th-century common law rule based not only on a judgment that it reflects the under- standing in place when the Sixth Amendment was rati- fied, but also on the “need to give intelligible content to the right of jury trial.” As JUSTICE SCALIA wrote in it is unclear “what the right to trial by jury does guarantee if it does not guarantee the right to have a jury determine those facts that deter- mine the maximum sentence the law allows.” 530 U. S., at 498–499 (concurring opinion). After all, if a judge’s factfinding could authorize a sen- tence beyond that allowed by the jury’s verdict alone, the jury trial would be “a mere preliminary to a judicial inqui- 4 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting sition into the facts of the crime the State actually seeks to punish.” at 306–307. The Framers clearly envisioned a more robust role for the jury. They appreci- ated the danger inherent in allowing “justices named by the crown” to “imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declara- tion, that such is their will and |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | an instant declara- tion, that such is their will and pleasure.” 4 W. Black- stone, Commentaries on the Laws of England 343 (1769). To guard against this “violence and partiality of judges appointed by the crown,” the common law “wisely placed th[e] strong barrier, of trial by jury, between the liberties of the people, and the prerogative of the crown.” The Sixth Amendment therefore provided for trial by jury as a “double security, against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipi- tancy.” J. Story, Commentaries on the Constitution of the United States p. 657 (Abr. 1833); see also The Fed- eralist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton) (discussing criminal jury trial as a protection against “judicial despotism”). Our holdings that a judge may not sentence a defendant to more than the jury has authorized properly preserve the jury right as a guard against judicial overreaching. II There is no such risk of judicial overreaching here. Under 18 U.S. C. the jury’s verdict fully authorized the judge to impose a sentence of anywhere from five years to life in prison. No additional finding of fact was “essential” to any punishment within the range. After rendering the verdict, the jury’s role was completed, it was discharged, and the judge began the process of determining where within that range to set Alleyne’s sentence. Cite as: 570 U. S. (2013) 5 ROBERTS, C. J., dissenting Everyone agrees that in making that determination, the judge was free to consider any relevant facts about the of- fense and offender, including facts not found by the jury beyond a reasonable doubt. “[B]oth before and since the American colonies became a nation, courts practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” As itself recognized, “nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judg- ment within the range prescribed by statute.” 530 U. S., at 481 (emphasis deleted); see also Dillon v. United States, 560 U.S. (2010) (slip op., at 11). And the majority does not dispute the point. Ante, at 15 (“Our ruling today does not mean that any fact that influences judicial discre- tion must be found by a |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | that influences judicial discre- tion must be found by a jury.”). Thus, under the majority’s rule, in the absence of a statutory mandatory minimum, there would have been no constitutional problem had the judge, exercising the discretion given him by the jury’s verdict, decided that seven years in prison was the appro- priate penalty for the crime because of his finding that the firearm had been brandished during the offense. In my view, that is enough to resolve this case. The jury’s verdict authorized the judge to impose the precise sentence he imposed for the precise factual reason he imposed it. As we have recognized twice before, the Sixth Amendment demands nothing more. See ; 6 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting III This approach is entirely consistent with As I have explained, ’s constraint on the normal legislative control of criminal procedure draws its legiti- macy from two primary principles: (1) common law under- standings of the “elements” of a crime, and (2) the need to preserve the jury as a “strong barrier” between defendants and the State. Neither of those principles supports the rule the majority adopts today. First, there is no body of historical evidence supporting today’s new rule. The majority does not identify a single case holding that a fact affecting only the sentencing floor qualified as an element or had to be found by a jury, nor does it point to any treatise language to that effect. Ante, at 8–10. To be sure, the relatively recent vintage of man- datory minimum sentencing enhancements means that few, if any, 19th-century courts would have encountered such a fact pattern. So I do not mean to suggest that the absence of historical condemnation of the practice con- clusively establishes its constitutionality today. But given that ’s rule rests heavily on affirmative historical evidence about the practices to which we have previously applied it, the lack of such evidence on statutory mini- mums is a good reason not to extend it here. Nor does the majority’s extension of do any- thing to preserve the role of the jury as a safeguard be- tween the defendant and the State. That is because even if a jury does not find that the firearm was brandished, a judge can do so and impose a harsher sentence because of his finding, so long as that sentence remains under the statutory maximum. The question here is about the power of judges, not juries. Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight—so long as the sentence remained within the range authorized by the jury. Now, in the Cite as: 570 U. S. (2013) 7 ROBERTS, C. J., dissenting name of the jury right that formed a barrier between the defendant and the State, the majority has erected a bar- rier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legisla- tures must keep their respectful distance. I find this new rule impossible to square with the histor- ical understanding of the jury right as a defense from judges, not a defense of judges. See at 498 (SCALIA, J., concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State”). Just as the Sixth Amendment “limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury,” so too it limits legislative power only to the extent that power infringes on the province of the jury. Because the claimed infringement here is on the province of the judge, not the jury, the jury right has no work to do. IV The majority offers several arguments to the contrary. I do not find them persuasive. First, the majority asserts that “because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range pro- duces a new penalty and constitutes an ingredient of the offense.” Ante, at 11 (citation omitted). The syllogism trips out of the gate, for its first premise—that the consti- tutionally relevant “penalty” includes the bottom end of the statutory range—simply assumes the answer to the question presented. Neither of the historical sources to which the majority points gives an answer: The treatise speaks only to situations in which “a statute prescribes a particular punishment,” not a range of possi- ble punishments. 1 Criminal Procedure at 360–361. The Wharton treatise is similarly unhelpful, focusing on statutes that change the maximum or alter the 8 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting nature of the common law crime. See 1 F. Wharton, Crim- inal Law p. 291 (rev. 7th ed. 1874). The sources provided in the concurrence offer no support, for as already discussed, we lack historical evidence about the treatment of facts that altered only the floor of a sentenc- ing range. Second, the majority observes that “criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty.” Ante, at 11. Again, though, this simply assumes the core premise: That the constitution- ally relevant “penalty” involves both the statutory minimum and the maximum. Unless one accepts that premise on faith, the fact that statutes have long specified both floor and ceiling is evidence of nothing more than that stat- utes have long specified both the floor and the ceiling. Nor does it help to say that “the floor of a mandatory range is as relevant to wrongdoers as the ceiling.” Ante, at 12. The meaning of the Sixth Amendment does not turn on what wrongdoers care about most. More importantly, legal rules frequently focus on the maximum sentence while ignoring the minimum, even though both are “relevant” to punishment. Closest to this case, the question whether the jury right applies at all turns on whether the maximum sentence exceeds six months—not, say, whether the minimum punishment involves time in prison. Blanton v. North Las Vegas, 489 U.S. 538, 543 (1989); see also Lewis v. United States, 518 U.S. 322, 326 (1996) (“In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized”). Likewise, the rights to vote and to bear arms are typically denied to felons—that is, those convicted of a crime with a maximum sentence of more than one year in prison. See Richardson v. Ramirez, 418 U.S. 24, 48 (1974); District of Columbia v. Heller, 554 U.S. 570, 626 (2008); Black’s Law Dictionary 694 (9th ed. Cite as: 570 U. S. (2013) 9 ROBERTS, C. J., dissenting 2009). Examples of other distinctions turning only on max- imum penalties abound, as in cases of recidivism en- hancements that apply only to prior convictions with a maximum sentence of more than a specified number of years. See, e.g., 18 U.S. C. That a minimum sentence is “relevant” to punishment, and that a statute defines it, does not mean it must be treated the same as the maximum sentence the law allows. Third, the majority offers that “it is impossible to dis- pute that facts increasing the legally prescribed floor aggravate the punishment.” Ante, at 12. This argument proves too much, for it would apply with equal force to any fact which leads the judge, in the exercise of his own dis- cretion, to choose a penalty higher than he otherwise would have chosen. The majority nowhere explains what it is about the jury right that bars a determination by Congress that brandishing (or any other fact) makes |
Justice Roberts | 2,013 | 0 | dissenting | Alleyne v. United States | https://www.courtlistener.com/opinion/903985/alleyne-v-united-states/ | determination by Congress that brandishing (or any other fact) makes an offense worth two extra years, but not an identical deter- mination by a judge. Simply calling one “aggravation” and the other “discretion” does not do the trick. Fourth, the majority argues that “[i]t is no answer to say that the defendant could have received the same sentence with or without” a particular factual finding, pointing out “that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical.” Ante, at 14. In that hypothetical case, the legislature has chosen to define two crimes with two different sets of elements. Courts must, of course, respect that legislative judgment. But that tells us nothing about when courts can override the legislature’s decision not to create sepa- rate crimes, and instead to treat a particular fact as a trigger for a minimum sentence within the already- authorized range. 10 ALLEYNE v. UNITED STATES ROBERTS, C. J., dissenting * * * I will not quibble with the majority’s application of our stare decisis precedents. But because I believe the major- ity’s new rule—safeguarding the power of judges, not juries—finds no support in the history or purpose of the Sixth Amendment, I respectfully dissent. Cite as: 570 U. S. (2013) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–35 ALLEN RYAN ALLEYNE, PETITIONER v. |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | [*] The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood *0 to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited "the application of the draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed," The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the "arresting judgment" provision of the Criminal Appeals Act, 18 U.S. C. 331, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.[1] *1 As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable. I A single-count indictment charged that Sisson "did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty" imposed by the Military Selective Service Act of and its regulations, in violation of 1 of the Act, 50 U.S. C. App. 46 (a) (14 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction. Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | was claimed that Sisson's refusal to submit to induction was justified first, because "the government's military involvement in Vietnam violates international law"; and, second, because Sisson "reasonably believed the government's military involvement in Vietnam to be illegal." As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated: "At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience." * At the hearing on appellee's motion to dismiss, the District Judge said that he had "an open mind" concerning appellee's first and third grounds. However, the court said there was "nothing to" the second ground, noting that what "the defendant reasonably believes cannot be raised in the way that you propose because that does not appear on the face of the indictment." (App. 49.) The District Court later amplified this conclusion by saying: "Point is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment." (App. 5.) (Emphasis supplied.) Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only "in the interest of economy," because "[i]t was not clear at the time I filed the motion that the government would challenge this fact." (App. 5.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The court thereupon found the "second ground" of the motion to dismiss without merit. A short time after this hearing, the District Court issued two written opinions, that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for *3 an undeclared war, or could order Sisson to fight in the allegedly "genocidal war." An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would "offer evidence to show that [Sisson] properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional." Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge "to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war." At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam war to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least *4 hoped to convince the jury that Sisson lacked the requisite intent to "wilfully" refuse induction.[] There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was "immoral," "illegal," and "unjust," and went against "my principles and my best sense of what was right." The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, () value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his "moral values come from the same sources [the trial court had] mentioned, religious writings, philosophical beliefs." The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance *5 on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful,[3] the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification. In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or nonreligious conscientious objector issue. The defense argued that the key to the case was whether Sisson had "wilfully" refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sissons' broad statements that he opposed deferments because they discriminated against the poor, *6 see n. and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 18-188.) The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was "sincere" in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was "unlawfully, knowingly and wilfully" done.[4] The jury, after deliberating about 0 minutes, brought in a verdict of guilty. After the trial, the defendant made a timely motion under Fed. Rule Crim. Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction.[5] Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense * argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense. The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's "older contention"[6] that the indictment did not charge an offense based on defendant's "never-abandoned" Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war. The court first stated the facts of the case, in effect making findings essential to its decision. The opinion *8 describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that "Sisson's table of ultimate values is moral and ethical [and] reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion." The critical finding for what followed was that: "What another derives from the discipline of a church, Sisson derives from the discipline of conscience. ". Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion." 9 F. Supp., at 905. Building on these findings, the court first held that the Free Exercise and Due Process Clauses "prohibit the application of the draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed." The District Court also ruled that 6 (j) of the Selective Service Act, 50 U.S. C. App. 456 (j) (14 ed., Supp. IV), offends the Establishment Clause because it "unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings." 9 F. Supp., at 911. II The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the "arresting judgment" provision of the *9 Criminal Appeals Act, 18 U.S. C. 331.[] The relevant statutory language provides: "An appeal may be taken by and on behalf of the United from the district courts direct to the Supreme Court of the United in all criminal cases in the following instances: "From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded." Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one "arresting a judgment of conviction." Second, the arrest of judgment *80 must be for the "insufficiency of the indictment or information." And third, the decision must be "based upon the invalidity or construction of the statute upon which the indictment or information is founded."[8] Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met.[9] A We begin with the first requirement: was the decision below one "arresting a judgment of conviction"? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment *81 invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 68 (1st Am. ed. 1845); J. Bishop, New Criminal Procedure 185 (d ed. 1913). For the purpose of this case the critical requirement is that a judgment can be arrested only on the basis of error appearing on the "face of the record," and not on the basis of proof offered at trial.[10] This requirement can be found in early English common-law cases. In Sutton v. Bishop, 4 Burr. 83, 8, 98 Eng. Rep. 191, 193 (K. B. 169), it was stated: "[T]he Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself." Once transported to the United[11] this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In United (180), the Court stated that "judgment can be arrested only for errors apparent on the record." And later in 11 U.S. 604 the Court said, "[A] motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose," See ; United 81 U.S. 619 |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | record for this purpose," See ; United 81 U.S. 619 This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting *8 a motion in arrest of judgment under Rule 34,[1] a district court must not look beyond the face of the record. E. g., United 1 F.d 40 (C. A. d Cir.), appeal dismissed on Government's motion, ; United 13 F.d 685 ; United 194 F.d 19 (C. A. d Cir. 195). See C. Wright, Federal Practice and Procedure 51 ; 5 L. Orfield, Criminal Procedure Under the Federal Rules 34: Therefore, whether we interpret the statutory phrase "decision arresting a judgment" as speaking "to the law, as it then was [in 190] as it had come down from the past,"[13] or do no more than interpret it as simply imposing the standards of Fed. Rule Crim. Proc. 34,[14] a decision based on evidence adduced at trial cannot be one arresting judgment.[15] *83 The court below clearly went beyond the "face of the record" in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was "sincere" and that he was "as genuinely and profoundly governed by his conscience" as a religious conscientious objector. To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of "the circumstantial framework" of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This *84 cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court's own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson's interest in not serving in Vietnam outweighed the Government's need to draft him for such service.[16] Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were "undisputed." Adopting the language used by the court below, the Government claims that "in substance the case arises upon an agreed statement of facts." 9 F. Supp., at 904. The Government then goes on to argue that decisions of this Court have "recognized |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | on to argue that decisions of this Court have "recognized that a stipulation of facts by the parties in a criminal case" can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United 34 U.S. (195), and United v. 365 U. S. *85 146 (11). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties. Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under 331 existed, the Court obviously did not have to decideand it did not discusswhether reliance on a stipulation would make any difference. Insofar as United v. the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In this Court refused to consider the merits of an appeal under 331 from a District Court decision dismissing an indictment on the basis of a " `judicial admission' culled from a pretrial memorandum" of the Government by the District Judge. Rather than penalizing the Government by dismissing the appeal, however, the Court simply exercised its discretion under 8 U.S. C. 106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment. Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United 81 U.S. 619 this Court said that a "stipulation *86 was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence," because of "the rule that nothing can be added to an indictment without the concurrence of the grand jury." at 6. While it is true that Norris is complicated by the fact that the defendant |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that even "[i]f [the stipulation had been] filed before plea and [had been] given effect, such a stipulation would oust the jurisdiction of the court," at 6-63. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government's right to appeal, see, e. g., United 19 makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the motion-in-arrest provisions of 331. We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court's decision the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible, *8 it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trialfor this would mean the parties and the lower court simply could foist jurisdiction upon this Court. B The second statutory requirement, that the decision arresting judgment be "for insufficiency of the indictment," is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said: "The arrest of judgment on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictmentthat is, the failure of the indictment to charge a criminal offense." 41 Cong. Rec. 56. (Emphasis supplied.) See |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | a criminal offense." 41 Cong. Rec. 56. (Emphasis supplied.) See also 40 Cong. Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did "not charge an offense" for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense.[1] The decision *88 below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United 6 F. Supp. 45, Moreover, even assuming, arguendo, the correctness of the District Court's constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson's claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, "[W]hat [Sisson] believed is a question of evidence and not a question which appears on the face of the indictment." (App. 5.) In short, this indictment cannot be taken as insufficient for, on the one hand, it recites the necessary elements of an offense, and on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege. C The same reason underlying our conclusion that this was not a decision arresting judgmenti.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trialconvinces us that the decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty. *89 For purposes of analysis it is helpful to compare this case to one in which a jury was instructed as follows: "If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him because the government's interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did wilfully refuse induction." If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under 331 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act: "Mark this: It is not proposed to give the Government any appeal under any circumstances when |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court. "The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial. "The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him." 41 Cong. Rec. 5. Quite apart from the statute, it is, of course, well settled that an acquittal can "not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. [I]n this country a verdict of acquittal, although not followed by *90 any judgment, is a bar to a subsequent prosecution for the same offence," United 163 U.S. 66,[18] There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judgenot the jurywho made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed. Rule Crim. Proc. 9. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 9 (b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow a federal judge to acquit a criminal defendant after the jury "returns a verdict of guilty." And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal.[19] *91 III The dissenting opinions of both THE CHIEF JUSTICE and MR. JUSTICE WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified," United 19 and that such appeals "are something unusual, exceptional, not favored," (195); see United 11 U.S. 30, ; United 13 U.S. |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | (195); see United 11 U.S. 30, ; United 13 U.S. 9, ; cf. The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act, *9 now 18 U.S. C. 331 (14 ed., Supp. IV),[0] has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 190, 34 Stat. 146,[1] the crucial focus for this inquiry must be the legislative history of the 190 Act.[] *93 A Beginning in 18915 years before the enactment of the Criminal Appeals Actthe Attorneys General of the United regularly recommended passage of legislation allowing the Government to appeal in criminal cases.[3] Their primary purpose was perhaps best expressed by Attorney General Miller in his 189 report: "As the law now stands it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government."[4] There was no progress, however, until President Theodore Roosevelt, outraged by a decision of *94 Judge Humphrey preventing the prosecution of the Beef Trust,[5] made this proposed reform into a "major political issue,"[6] and demanded the enactment of legislation in his 1906 annual message to Congress.[] The House, as one commentator has written, "was obedient to the presidential command."[8] It passed, without debate,[9] a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant.[30] The Senate would not accept any such sweeping change of the traditional common-law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out[31] narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; () arresting judgment of conviction because of the insufficiency of the indictment; and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed, *95 the bill met opposition on the floor,[3] and the session closed without Senate action.[33] The next session, after the bill was again reported out of the Senate Judiciary Committee,[34] it was debated for three days on the floor and again met strong opposition.[35] Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence;[36] and allowing defendants whose cases were appealed to be released on their own recognizance in the discretion of the presiding judge.[3] Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government.[38] In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal[39] no matter how erroneous the legal theory upon which it might be based.[40] For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury's decision or that of the judge.[41] Moreover, as we explore in more detail later, * the debates suggest that apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury.[4] Finally, to limit further the scope of the Act to cases of public importance, the Government's right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court's decision was the "invalidity or construction of the statute upon which the indictment is founded."[43] With all these amendments the Senate passed the bill without division on February 13, 190,[44] but the House, after referring the Senate's version to its Judiciary Committee,[45] disagreed with the Senate bill and proposed a conference.[46] The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes.[4] Both the Senate and the House approved the bill reported out by the committee[48] and with the President's signature the Criminal Appeals Act became law. B With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in *9 dissent that 331 "contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history," and concludes that "evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied," post, at 314 (dissenting opinion of THE CHIEF JUSTICE). The dissenters propose in effect to create a |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | CHIEF JUSTICE). The dissenters propose in effect to create a new procedure label it a decision arresting judgmentin order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase "decision arresting a judgment" is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 190. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34.[49] Radical reinterpretations of the statutory phrase "decision arresting a judgment" are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that *98 guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act.[50] In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government "always threaten to offend the policies behind the double-jeopardy prohibition," at even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents.[51] For the Criminal Appeals Act, thus born of compromise, manifested a congressional policy to provide review *99 in certain instances but no less a congressional policy to restrict it to the enumerated circumstances. Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that in particular circumstances a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights. C Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the "motion in bar" provision of the Criminal Appeals Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue,[5] even though our holding that the decision below was an acquittal is sufficient to dispose of the case. *300 The case law under the motion-in-bar provision is very confused,[53] and this Court has not settled on a general approach to be taken in interpreting this provision.[54]*301 Even under the most expansive view, however, a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case.[55] In this case, there can be no doubt that the District Court based its findings on evidence presented in the trial of the general issue. As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the "general issue" of a suit over a registrant's refusal to submit to induction. AS THE CHIEF JUSTICE says in his dissenting opinion, "establishing the appropriate classification is actually an element of the Government's case," post, at 34, once a defendant raises a defense challenging it. We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United 6 F. Supp. 45, (pretrial |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | with the general issue, United 6 F. Supp. 45, (pretrial motion to dismiss under Rule 1 (b) (1) on the basis of an affidavit, denied because "the validity of the [conscientious objector] defense which Fargas now raises will require the consideration of factual questions which are embraced in the general issue"); see United v. Ramos, 413 F.d 43, 44 n. 1 (evidentiary hearing for pretrial motion to dismiss indictment not appropriate means to consider validity of defense based on conscientious objection because "[q]uestions regarding the validity of *30 appellant's classification should have been raised as a defense at the trial," citing Fargas with approval).[56] There is, in our view, still another reason no appeal can lie in this case under the motion-in-bar provision. We construe the Criminal Appeals Act as confining the *303 Government's right to appealexcept for motions in arrest of judgmentto situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of 331. *304 We reach this conclusion for several reasons. First, although the legislative history is far from clear, we think it was the congressional expectation that except for motions in arrestwhich as we have shown could never be based on evidence adduced at trialthe rulings to which the bill related would occur before the trial began.[5] The language of the motion-in-bar provision *305 itself limits appeals to those granted "when the defendant has not been put in jeopardy." We read that limitation to mean exactly what it saysi. e., no appeal from a motion in bar is to be granted after jeopardy attaches. Although the legislative history shows much disagreement and confusion concerning the meaning of the constitutional prohibition against subjecting a defendant to double jeopardy[58] there was little dispute over the then-settled notion that a defendant was put into jeopardy once the jury was sworn.[59] To read this limitation as no more than a restatement of the constitutional prohibition, as suggested by MR. JUSTICE WHITE, renders it completely superfluous. No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution.[60] Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation *306 on the Act. The Department |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | exactly this same interpretation *306 on the Act. The Department of Justice, the agency for whose benefit the original bill was enacted, first placed this construction on the statute shortly after the bill was enacted, and has consistently abided by it in the more than 60 years that have since passed. As the Solicitor General stated in his brief: "The Department of Justice has consistently taken the view that the plea in bar section limits the government's right of appeal to the granting of such pleas before a jury has been sworn. Soon after passage of the original Act, the 190 Report of the Attorney General urged that the omission in the Act of a governmental right to appeal from post-jeopardy rulings be remedied by revising the Act so as to require counsel for the defendant to raise and argue questions of law prior to the time when jeopardy attached," Brief 1. Later, after describing the opinion in in which the Second Circuit certified an appeal to this Court to determine whether the phrase "not been put in jeopardy" merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states: "The then Solicitor General, being of the view that the statute barred appeals from the granting of motions in bar after jeopardy had attached, moved to dismiss the appeal, and the appeal was dismissed (). The Department of Justice has thereafter adhered to that position, and the government has never sought to appeal in these circumstances."[61] This interpretation in our view deserves great weight. *30 In light of (1) the compromise origins of the statute, () the concern with which some Senators viewed the retrial of any defendant whose trial terminated after the jury was impaneled, and (3) the interpretation placed on the Act shortly after its passage[6] that has been consistently followed for more than 60 years by the Government, we think that the correct course is to construe the statute to provide a clear, easily administered test: except for decisions arresting judgment, there can be no government appeals from decisions rendered after the trial begins. IV Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility,[63] the Criminal Appeals Act proved a most |
Justice Harlan | 1,970 | 22 | majority | United States v. Sisson | https://www.courtlistener.com/opinion/108195/united-states-v-sisson/ | of appellate responsibility,[63] the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law but *308 which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized,[64] but it has also engendered confusion over the court to which an appealable decision should be brought.[65] The Solicitor General, at oral argument in this case, forthrightly stated that "there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office [as] in the proper construction of the Criminal Appeals Act."[66] We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act. We conclude that the appeal in this case must be dismissed for lack of jurisdiction. It is so ordered. MR. JUSTICE BLACK concurs in the judgment of the Court and Part II C of the opinion. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS and MR. |
Justice Ginsburg | 1,997 | 5 | majority | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | In this case, we consider for a second time the constitutionality of an escheat-to-tribe provision of the Indian Land Consolidation Act (ILCA). as amended, 25 U.S. C. 2206. Specifically, we address 207 of the ILCA, as amended in 1984. Congress enacted the original provision *237 in 1983 to ameliorate the extreme fractionation problem attending a century-old allotment policy that yielded multiple ownership of single parcels of Indian 207, Amended 207 provides that certain small interests in Indian lands will transferor "escheat"to the tribe upon the death of the owner of the interest. Stat. 3173. In this Court held that the original version of 207 of the ILCA effected a taking of private property without just compensation, in violation of the Fifth Amendment to the United States Constitution. We now hold that amended 207 does not cure the constitutional deficiency this Court identified in the original version of 207. I In the late Nineteenth Century, Congress initiated an Indian land program that authorized the division of communal Indian property. Pursuant to this allotment policy, some Indian land was parcelled out to individual tribal members. Lands not allotted to individual Indians were opened to nonIndians for settlement. See Indian General Allotment Act of 1887, ch. 119, Allotted lands were held in trust by the United States or owned by the allottee subject to restrictions on alienation. On the death of the allottee, the land descended according to the laws of the State or Territory in which the land was located. In 1910, Congress also provided that allottees could devise their interests in allotted Act of June 25, 1910, ch. 431, 2, codified as amended, 25 U.S. C. 373. The allotment policy "quickly proved disastrous for the Indians." The program produced a dramatic decline in the amount of land in Indian hands. F. Cohen, Handbook of Federal Indian Law 138 (1982) (hereinafter Cohen). And as allottees passed their interests on to multiple heirs, ownership of allotments became increasingly fractionated, with some parcels held by dozens of owners. *238 Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 77 (1984) (hereinafter Lawson). A number of factors augmented the problem: Because Indians often died without wills, many interests passed to multiple heirs, H. R. Rep. No. 97-908, p. 10 (1982); Congress' allotment Acts subjected trust lands to alienation restrictions that impeded holders of small interests from transferring those interests, Lawson 78-79; Indian lands were not subject to state real estate taxes, Cohen 406, which ordinarily serve as a |
Justice Ginsburg | 1,997 | 5 | majority | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | real estate taxes, Cohen 406, which ordinarily serve as a strong disincentive to retaining small fractional interests in The fractionation problem proliferated with each succeeding generation as multiple heirs took undivided interests in allotments. The administrative difficulties and economic inefficiencies associated with multiple undivided ownership in allotted lands gained official attention as early as 1928. See L. Meriam, Institute for Government Research, The Problem of Indian Administration 40-41 (1928). Governmental administration of these fractionated interests proved costly, and individual owners of small undivided interests could not make productive use of the Congress ended further allotment in 1934. See Indian Reorganization Act, ch. 576, 25 U.S. C. 461 et seq. But that action left the legacy in place. As most owners had more than one heir, interests in lands already allotted continued to splinter with each generation. In the 1960's, congressional studies revealed that approximately half of all allotted trust lands were held in fractionated ownership; for over a quarter of allotted trust lands, individual allotments were held by more than six owners to a parcel. See 709 (citing Senate Committee on Interior and Insular Affairs, Indian Heirship Land Survey, 86th Cong., 2d Sess., pt. 2, p. x (Comm. Print 1960-1961)). In 1983, Congress adopted the ILCA in part to reduce fractionated ownership of allotted lands. tit. *239 II, Section 207 of the ILCAthe "escheat" provisionprohibited the descent or devise of small fractional interests in allotments.[1] Instead of passing to heirs, such fractional interests would escheat to the tribe, thereby consolidating the ownership of Indian lands. Congress defined the targeted fractional interest as one that both constituted 2 percent or less of the total acreage in an allotted tract and had earned less than $100 in the preceding year. Section 207 made no provision for the payment of compensation to those who held such interests. In this Court invalidated 207 on the ground that it effected a taking of property without just compensation, in violation of the Fifth 481 U.S., The appellees in were, or represented, heirs or devisees of members of the Oglala Sioux Tribe. But for 207, the appellees would have received 41 fractional interests in allotments; under 207, those interests would escheat to the Tribe. This Court tested the legitimacy of 207 by considering its economic impact, its effect on investment-backed expectations, and the essential character of the measure. See ; see also Penn Central Transp. Turning first to the economic impact of 207, the Court in observed that the provision's income-generation test might fail to capture the actual economic value of the The Court next indicated |
Justice Ginsburg | 1,997 | 5 | majority | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | the actual economic value of the The Court next indicated that 207 likely did not interfere with investmentbacked expectations. Key to the decision in however, was the "extraordinary" character of the *240 Government regulation. As this Court noted, 207 amounted to the "virtua[l] abrogation of the right to pass on a certain type of property." Such a complete abrogation of the rights of descent and devise could not be upheld. -717. II In 1984, while was still pending in the Court of Appeals for the Eighth Circuit, Congress amended 207. Pub. L. 96-608, 1(4),[2] Amended 207 differs from the original escheat provision in three relevant respects. First, an interest is considered fractional if it both *241 constitutes 2 percent or less of the total acreage of the parcel and "is incapable of earning $100 in any one of the five years [following the] decedent's death"as opposed to one year before the decedent's death in the original 207. 25 U.S. C. 2206(a). If the interest earned less than $100 in any one of five years prior to the decedent's death, "there shall be a rebuttable presumption that such interest is incapable of earning $100 in any one of the five years following the death of the decedent." Second, in lieu of a total ban on devise and descent of fractional interests, amended 207 permits devise of an otherwise escheatable interest to "any other owner of an undivided fractional interest in such parcel or tract" of 25 U.S. C. 2206(b). Finally, tribes are authorized to override the provisions of amended 207 through the adoption of their own codes governing the disposition of fractional interests; these codes are subject to the approval of the Secretary of the Interior. 25 U.S. C. 2206(c). In "[w]e express[ed] no opinion on the constitutionality of 207 as amended." n. 1. Under amended 207, the interests in this case would escheat to tribal governments. The initiating plaintiffs, respondents here, are the children and potential heirs of William Youpee. An enrolled member of the Sioux and Assiniboine Tribes of the Fort Peck Reservation in Montana, William Youpee died testate in October 0. His will devised to respondents, all of them enrolled tribal members, his several undivided interests in allotted trust lands on various reservations in Montana and North Dakota. These interests, as the Ninth Circuit reported, were valued together at $1, Each interest was devised to a single descendant. Youpee's will thus perpetuated existing fractionation, but it did not splinter ownership further by bequeathing any single fractional interest to multiple devisees. In 2, in a proceeding to determine the |
Justice Ginsburg | 1,997 | 5 | majority | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | multiple devisees. In 2, in a proceeding to determine the heirs to, and claims against, William Youpee's estate, an Administrative *242 Law Judge (ALJ) in the Department of the Interior found that interests devised to each of the respondents fell within the compass of amended 207 and should therefore escheat to the tribal governments of the Fort Peck, Standing Rock, and Devils Lake Sioux Reservations. App. to Pet. for Cert. 27a40a. Respondents, asserting the unconstitutionality of amended 207, appealed the ALJ's order to the Department of the Interior Board of Indian Appeals. The Board, stating that it did not have jurisdiction to consider respondents' constitutional claim, dismissed the appeal. Respondents then filed suit in the United States District Court for the District of Montana, naming the Secretary of the Interior as defendant, and alleging that amended 207 of the ILCA violates the Just Compensation Clause of the Fifth The District Court agreed with respondents and granted their request for declaratory and injunctive relief. (4). The Court of Appeals for the Ninth Circuit affirmed. That court carefully inspected the 1984 revisions to 207. Hewing closely to the reasoning of this Court in the Ninth Circuit determined that amended 207 did not cure the deficiencies that rendered the original provision unconstitutional. In particular, the Ninth Circuit observed that amended 207 "continue[d] to completely abolish one of the sticks in the bundle of rights [constituting property] for a class of Indian landowners." The Ninth Circuit noted that "Congress may pursue other options to achieve consolidation of fractional interests," including Government purchase of the land, condemnation for a public purpose attended by payment of just compensation, or regulation to impede further fractionation. But amended 207 could not stand, the Ninth Circuit concluded, for the provision remained "an extraordinary and impermissible regulation of Indian lands and effect[ed] an unconstitutional taking without just compensation." *243 On the petition of the United States, we granted certiorari, (6), and now affirm. III In determining whether the 1984 amendments to 207 render the provision constitutional, we are guided by[3] The United States maintains that the amendments, though enacted three years prior to the decision, effectively anticipated the concerns expressed in the Court's opinion. As already noted, amended 207 differs from the original in three relevant respects: It looks back five years instead of one to determine the income produced from a small interest, and creates a rebuttable presumption that this income stream will continue; it permits devise of otherwise escheatable interests to persons who already own an interest in the same parcel; and it authorizes tribes to develop their |
Justice Ginsburg | 1,997 | 5 | majority | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | the same parcel; and it authorizes tribes to develop their own codes governing the disposition of fractional interests. These modifications, according to the United States, rescue amended 207 from the fate of its predecessor. The Government maintains that the revisions moderate the economic impact of the provision and temper the character of the Government's regulation; the latter factor weighed most heavily against the constitutionality of the original version of 207. The narrow revisions Congress made to 207, without benefit of our ruling in do not warrant a disposition different from the one this Court announced and explained in Amended 207 permits a five-year window rather than a one-year window to assess the income-generating capacity of the interest. As the Ninth Circuit observed, however, argument that this change substantially mitigates the economic impact of 207 "misses the point." 67 F. 3d, at *244 Amended 207 still trains on income generated from the land, not on the value of the parcel. The Court observed in that "[e]ven if the income generated by such parcels may be properly thought of as de minimis," the value of the land may not fit that The parcels at issue in were valued by the Bureau of Indian Affairs at $2,700 and $1,816, amounts we found "not trivial." The value of the disputed parcels in this case is not of a different order; as the Ninth Circuit reported, the value of decedent Youpee's fractional interests was $1, 67 F.3d, at In short, the economic impact of amended 207 might still be palpable. Even if the economic impact of amended 207 is not significantly less than the impact of the original provision, the United States correctly comprehends that rested primarily on the "extraordinary" character of the governmental regulation. stressed that the original 207 "amount[ed] to virtually the abrogation of the right to pass on a certain type of propertythe small undivided interestto one's heirs." ; see also The Court further noted that the original 207 "effectively abolish[ed] both descent and devise [of fractional interests] even when the passing of the property to the heir might result in consolidation of property." As the United States construes Congress cured the fatal infirmity in 207 when it revised the section to allow transmission of fractional interests to successors who already own an interest in the allotment. Congress' creation of an ever-so-slight class of individuals equipped to receive fractional interests by devise does not suffice, under a fair reading of to rehabilitate the measure. Amended 207 severely restricts the right of an individual to direct the descent of his property. Allowing a |
Justice Ginsburg | 1,997 | 5 | majority | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | individual to direct the descent of his property. Allowing a decedent to leave an interest only to a current owner in the *245 same parcel shrinks drastically the universe of possible successors. And, as the Ninth Circuit observed, the "very limited group [of permissible devisees] is unlikely to contain any lineal descendants." 67 F.3d, at -200. Moreover, amended 207 continues to restrict devise "even in circumstances when the governmental purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with the further descent of the property." William Youpee's will, the United States acknowledges, bequeathed each fractional interest to one heir. Giving effect to Youpee's directive, therefore, would not further fractionate Indian land holdings. The United States also contends that amended 207 satisfies the Constitution's demand because it does not diminish the owner's right to use or enjoy property during his lifetime, and does not affect the right to transfer property at death through nonprobate means. These arguments did not persuade us in and they are no more persuasive today. See The third alteration made in amended 207 also fails to bring the provision outside the reach of this Court's holding in Amended 207 permits tribes to establish their own codes to govern the disposition of fractional interests; if approved by the Secretary of the Interior, these codes would govern in lieu of amended 207. See 25 U.S. C. 2206(c). The United States does not rely on this new provision to defend the statute. Nor does it appear that the United States could do so at this time: Tribal codes governing disposition of escheatable interests have apparently not been developed. See Tr. of Oral Arg. 42-43. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed. |
Justice Ginsburg | 2,000 | 5 | concurring | Reeves v. Sanderson Plumbing Products, Inc. | https://www.courtlistener.com/opinion/1087667/reeves-v-sanderson-plumbing-products-inc/ | The Court today holds that an employment discrimination plaintiff may survive judgment as a matter of law by submitting two categories of evidence: first, evidence establishing a "prima facie case," as that term is used in McDonnell Douglas ; and second, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its actions was false. Because the Court of Appeals in this case plainly, and erroneously, required the plaintiff to offer some evidence beyond those two categories, no broader holding is necessary to support reversal. I write separately to note that it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories in order to survive a motion for judgment as a matter of law. I anticipate that such circumstances will be uncommon. As the Court notes, it is a principle of evidence law that the jury is entitled to treat a party's dishonesty about a material fact as evidence of culpability. Ante, at 147. Under this commonsense principle, evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation. Whether the defendant was in fact motivated by discrimination is of course for the finder of fact to decide; that is the lesson of St. Mary's Honor But the inference remainsunless it is conclusively *155 demonstrated, by evidence the district court is required to credit on a motion for judgment as a matter of law, see ante, at 151, that discrimination could not have been the defendant's true motivation. If such conclusive demonstrations are (as I suspect) atypical, it follows that the ultimate question of liability ordinarily should not be taken from the jury once the plaintiff has introduced the two categories of evidence described above. Because the Court's opinion leaves room for such further elaboration in an appropriate case, I join it in full. |
Justice Stewart | 1,975 | 18 | concurring | North Ga. Finishing, Inc. v. Di-Chem, Inc. | https://www.courtlistener.com/opinion/109137/north-ga-finishing-inc-v-di-chem-inc/ | It is gratifying to note that my report of the demise of see (dissenting opinion), seems to have been greatly exaggerated. Cf. S. Clemens, cable from Europe to the Associated Press, quoted in 2 A. Paine, Mark Twain: A Biography 1039 (1912). *609 MR. JUSTICE POWELL, concurring in the judgment. I join in the Court's judgment, but I cannot concur in the opinion as I think it sweeps more broadly than is necessary and appears to resuscitate Only last term in the Court significantly narrowed the precedential scope of Fuentes. In my concurrence in I noted: "The Court's decision today withdraws significantly from the full reach of [Fuentes'] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled." Three dissenting Justices, including the author of Fuentes, went further in their description of the impact of : "[T]he Court today has unmistakably overruled a considered decision of this Court that is barely two years old, without pointing to any change that might justify this total disregard of stare decisis." The Court's opinion in this case, relying substantially on Fuentes, suggests that that decision will again be read as calling into question much of the previously settled law governing commercial transactions. I continue to doubt whether Fuentes strikes a proper balance, especially in cases where the creditor's interest in the property may be as significant or even greater than that of the debtor. Nor do I find it necessary to relegate to its narrow factual setting in order to determine that the Georgia garnishment statutes fail to satisfy the requirements of procedural due process. As we observed in the traditional view of procedural due process had been that " `[w]here only *610 property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' " quoting Consistent with this view, the Court in the past unanimously approved prejudgment attachment liens similar to those at issue in this case. ; Coffin ; See generally But the recent expansion of concepts of procedural due process requires a more careful assessment of the nature of the governmental function served by the challenged procedure and of the costs the procedure exacts of private interests. See, e. g., ; Cafeteria Under this analysis, the Georgia provisions cannot stand. Garnishment and attachment remedies afford the actual or potential judgment creditor a means of assuring, under appropriate circumstances, that the debtor will not remove from the jurisdiction, encumber, or otherwise dispose of certain assets then |
Justice Stewart | 1,975 | 18 | concurring | North Ga. Finishing, Inc. v. Di-Chem, Inc. | https://www.courtlistener.com/opinion/109137/north-ga-finishing-inc-v-di-chem-inc/ | the jurisdiction, encumber, or otherwise dispose of certain assets then available to satisfy the creditor's claim.[1] Garnishment may have a seriously adverse impact on the debtor, depriving him of the use of his assets during the period that it applies. But this fact alone does not give rise to constitutional objection. The State's legitimate interest in facilitating creditor recovery through the provision of garnishment remedies has never been seriously questioned. *611 Pregarnishment notice and a prior hearing have not been constitutionally mandated in the past. Despite the ambiguity engendered by the Court's reliance on Fuentes, I do not interpret its opinion today as imposing these requirements for the future.[2] Such restrictions, antithetical to the very purpose of the remedy, would leave little efficacy to the garnishment and attachment laws of the 50 States. In my view, procedural due process would be satisfied where state law requires that the garnishment be preceded by the garnishor's provision of adequate security and by his establishment before a neutral officer[3] of a factual basis of the need to resort to the remedy as a means of preventing removal or dissipation of assets required to satisfy the claim. Due process further requires that the State afford an opportunity for a prompt post-garnishment judicial hearing in which the garnishor has *612 the burden of showing probable cause to believe there is a need to continue the garnishment for a sufficient period of time to allow proof and satisfaction of the alleged debt. Since the garnished assets may bear no relation to the controversy giving rise to the alleged debt, the State also should provide the debtor an opportunity to free those assets by posting adequate security in their place. The Georgia provisions fall short of these requirements. Garnishment may issue on the basis of a simple and conclusory affidavit that the garnishor has reason to apprehend the loss of money allegedly owed. See set forth in full in the Court's opinion, ante, at 602 n. 1. As shown by the affidavit filed in this case, see ante, at 604 n. 2, an unrevealing assertion of apprehension of loss suffices to invoke the issuance of garnishment.[4] This is insufficient to enable a neutral officer to make even the most superficial preliminary assessment of the creditor's asserted need.[5] *613 The most compelling deficiency in the Georgia procedure is its failure to provide a prompt and adequate postgarnishment hearing. Under Georgia law, garnishment is a separate proceeding between the garnishor and the garnishee. The debtor is not a party and can intervene only by filing a dissolution bond and |
Justice Stewart | 1,975 | 18 | concurring | North Ga. Finishing, Inc. v. Di-Chem, Inc. | https://www.courtlistener.com/opinion/109137/north-ga-finishing-inc-v-di-chem-inc/ | and can intervene only by filing a dissolution bond and substituting himself for the garnishee. ; As noted above, the issuance of the garnishment may impose serious hardship on the debtor. In this context, due process precludes imposing the additional burden of conditioning the debtor's ability to question the validity of its issuance or continuation on the filing of a bond. Moreover, the Georgia statute contains no provision enabling the debtor to obtain prompt dissolution of the garnishment upon a showing of fact,[6] nor any indication that the garnishor bears the burden of proving entitlement to the garnishment. I consider the combination of these deficiencies to be fatal to the Georgia statute. Quite simply, the Georgia *614 provisions fail to afford fundamental fairness in their accommodation of the respective interests of creditor and debtor. For these reasons, I join in the judgment of the Court. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, dissenting. The Court once againfor the third time in less than three yearsstruggles with what it regards as the due process aspects of a State's old and long-unattacked commercial statutes designed to afford a way for relief to a creditor against a delinquent debtor. On this third occasion, the Court, it seems to me, does little more than make very general and very sparse comparisons of the present case with on the one hand, and with on the other; concludes that this case resembles Fuentes more than it does ; and then strikes down the Georgia statutory structure as offensive to due process. One gains the impression, particularly from the final paragraph of its opinion, that the Court is endeavoring to say as little as possible in explaining just why the Supreme Court of Georgia is being reversed. And, as a result, the corresponding commercial statutes of all other States, similar to but not exactly like those of Florida or Pennsylvania or Louisiana or Georgia, are left in questionable constitutional status, with little or no applicable standard by which to measure and determine their validity under the Fourteenth Amendment. This, it seems to me, is an undesirable state of affairs, and I dissent. I do so for a number of reasons: 1. mentioned in passing by the Court in its present opinion, ante, at 605-606, was correctly regarded by the Georgia Supreme Court, as a case relating to the garnishment of wages. The opinion in Sniadach makes this emphasis: "We deal here with wagesa specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems |
Justice Stewart | 1,975 | 18 | concurring | North Ga. Finishing, Inc. v. Di-Chem, Inc. | https://www.courtlistener.com/opinion/109137/north-ga-finishing-inc-v-di-chem-inc/ | turn then to the nature of that property and problems of procedural due process." It goes on to speak of possible "tremendous hardship on wage earners with families to support," ib and the "enormous" leverage of the creditor "on the wage earner," Sniadach should be allowed to remain in its natural environmentwagesand not be expanded to arm's-length relationships between business enterprises of such financial consequence as North Georgia Finishing and Di-Chem. 2. The Court, ante, at 606, regards the narrow limitations of Sniadach as affected by Fuentes. It also bows to Morrow Electric and the three-judge holding there that the Georgia statutes before us are unconstitutional. Ante, at 605 n. 4. Indeed, perhaps Sniadach for a time was so expanded (somewhat surprisingly, I am sure, to the Sniadach Court) by the implications and overtones of Fuentes. But came along and Morrow was more than three months pre-. Sniadach's expansion was surely less under than it might have appeared to be under Fuentes. 3. I would have thought that, whatever Fuentes may have stood for in this area of debtor-creditor commercial relationships, with its 4-3 vote by a bobtailed Court, it was substantially cut back by Certainly, MR. JUSTICE STEWART, the author of Fuentes and the writer of the dissenting opinion in thought so: "The deprivation of property in this case is identical *616 to that at issue in Fuentes, and the Court does not say otherwise." "In short, this case is constitutionally indistinguishable from and the Court today has simply rejected the reasoning of that case and adopted instead the analysis of the Fuentes dissent." "Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old The only perceivable change that has occurred since the Fuentes case is in the makeup of this Court." Surely, MR. JUSTICE BRENNAN thought so when he asserted in dissent that he was "in agreement that Fuentes. requires reversal" of the Louisiana judgment. And surely, MR. JUSTICE POWELL thought so, substantially, when, in his concurrence, he observed: "The Court's decision today withdraws significantly from the full reach of [the Fuentes] principle, and to this extent I think it fair to say that the Fuentes opinion is overruled." I accept the views of these dissenting and concurring Justices in that Fuentes at least was severely limited by and I cannot regard Fuentes as of much influence or precedent for the present case. 4. Fuentes, a constitutional decision, obviously should not have been brought down and decided by a 4-3 vote when there were two vacancies on the Court |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | 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 affirm the judgment of the Court of Appeals for the Eleventh Circuit to the extent it vacates respondent Johnny Paul Witt's sentence of death. Even if I thought otherwise, however, I would vote to affirm the decision below in this case. If the presently prevailing view of the Constitution is to permit the State to exact the awesome punishment of taking a life, then basic justice demands that with the power to decide whether a capital defendant lives or dies not be poisoned against the defendant. The Sixth Amendment jury guarantee "reflect[s] a profound judgment about the way in which law should be enforced and justice administered. Providing an accused with the right to be tried by a jury of his peers [gives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." In the Court recognized that the voir dire practice of "death qualification" the exclusion for cause, in capital cases, of jurors opposed to capital punishment can dangerously erode this "inestimable safeguard" by creating unrepresentative "uncommonly willing to condemn a man to die." See also To protect against this risk, and its progeny have required the State to make an exceptionally strong showing that a prospective juror's views about the death penalty will result in actual bias toward the defendant before permitting exclusion of the juror for cause. The Court of Appeals below correctly applied the stringent standards to the voir dire colloquy between the prosecutor and prospective juror Colby. Reversing this decision, the Court today abandons 's strict *440 limits on death-qualification and holds instead that death-qualification exclusions be evaluated under the same standards as exclusions for any other cause.[1] Championing the right of the State to a jury purged of all possibility of partiality toward a capital defendant, the Court today has shown itself willing to ignore what the Court in and its progeny thought crucial: the inevitable result of the quest for such purity in the jury room in a capital case is not a neutral jury drawn from a fair cross section of the community but a jury biased against the defendant, at least with respect to penalty,[2] and a jury from which an identifiable segment of the community has been excluded. Until today it had been constitutionally impermissible for the State to require a defendant to place his life in the hands of such a jury; our fundamental |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | life in the hands of such a jury; our fundamental notions of criminal justice were thought to demand that the State, not the defendant, bear the risk of a less than wholly neutral jury when perfect neutrality cannot, as in this situation it most assuredly cannot,[3] be achieved. Today the State's right to ensure exclusion of any juror who might fail *441 to vote the death penalty when the State's capital punishment scheme permits such a verdict vanquishes the defendant's right to a jury that assuredly will not impose the death penalty when that penalty would be inappropriate. I A Because the Court is not forthright about the extent to which today's decision departs from and its progeny, and because the Court does not even acknowledge the constitutional rights is meant to protect, a detailed exposition of is in order. In the typical case not involving the possibility of a death penalty, the State is given significant leeway to exclude for cause those jurors who indicate that various circumstances might affect their impartiality.[4] Broad exclusion is generally permitted even though some such jurors, if pressed further on voir dire, might be discovered to possess the ability to lay aside their prejudices and judge impartially. Although, as we held in exclusion on "any broader basis" than a juror's unambiguously expressed inability to follow instructions and abide by an oath serves no legitimate state interest, 21, such broader exclusion is typically permitted for the sake of convenience because it disserves no interest of the defendant. The Court's crucial perception in was that such broad exclusion of prospective jurors on the basis of the possible effect of their views about capital punishment infringes the rights of a capital defendant in a way that broad exclusion for indicia of other kinds of bias does not. No systemic skew in the nature of jury composition results from exclusion of individuals for random idiosyncratic traits likely *442 to lead to bias. Exclusion of those opposed to capital punishment, by contrast, keeps an identifiable class of people off the jury in capital cases and is likely systemically to bias Such are more likely to be hanging tribunals more disposed in any given case to impose a sentence of death. These will be unlikely to represent a fair cross section of the community, and their verdicts will thus be unlikely to reflect fairly the community's judgment whether a particular defendant has been shown beyond a reasonable doubt to be guilty and deserving of death. For a community in which a significant segment opposes capital punishment, "proof beyond a |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | which a significant segment opposes capital punishment, "proof beyond a reasonable doubt" in a capital case might be a stricter threshold than "proof beyond a reasonable doubt" in a noncapital case. A jury unlikely to reflect such community views is not a jury that comports with the Sixth Amendment. See -520. Cf. ("It is not necessary to conclude that the excluded group will consistently vote as a class in order to conclude that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance"); This perception did not, however, lead us to ban all inquiry into a prospective juror's views about capital punishment. We also acknowledged, as the Court today correctly points out, that the State's legitimate interest in an impartial jury encompasses the right to exclude jurors whose views about capital punishment would so distort their judgment that they could not follow the law. accommodated both the defendant's constitutionally protected rights and the State's legitimate interests by permitting the State to exclude jurors whose views about capital punishment would *443 prevent them from being impartial but requiring strict standards of proof for exclusio In particular, precluded any speculative presumption that a juror opposed to capital punishment would for that reason lack the ability to be impartial in a particular case; "[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror." Accord, ; Beyond prohibiting any presumption of bias, imposed, as the Court today recognizes, an "extremely high burden of proof" of actual bias. Ante, at 4 The State may exclude only those jurors who make it "unambiguous" or "unmistakably clear," that their views about capital punishment would prevent or substantially impair them from following the law.[5] Three important consequences flow from 's stringent standard for exclusio First, it permits exclusion only of jurors whose views would prevent or substantially impair them from following instructions or abiding by an oath, and not those whose views would simply make these tasks more psychologically or emotionally difficult, nor those whose views would in good faith color their judgment of what a "reasonable doubt" is in a capital case. -51. Second, it precludes exclusion of jurors *444 whose voir dire responses to death-qualification inquiries are ambiguous or vacillating. Third, it precludes exclusion of jurors who do not know at voir dire whether their views about the death penalty will prevent them abiding by their oaths at trial. See generally Schnapper, Taking Seriously: |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | by their oaths at trial. See generally Schnapper, Taking Seriously: The Search for Death-Qualified Jurors, 2 L. Rev. 977, 981-993 These restrictions not only trace narrowly the compass of permissible exclusion but also allocate to the State the cost of unavoidable uncertainty with respect to whether a prospective juror with scruples about capital punishment should be excluded. They do so in much the same way, and for much the same reason, that the "proof beyond a reasonable doubt" standard of guilt allocates to the State the cost of uncertainty with respect to whether a particular defendant committed a crime. See In re At voir dire some prospective jurors may make clear that their opposition to capital punishment will color their judgment but may not make clear whether the effect will rise to the level of "conscious distortion or bias." Many others will not bring to the voir dire a considered position about capital punishment and thus may respond with uncertainty, ambiguity, evasion, or even self-contradiction during the death-qualification process. When the time for decision arrives such jurors might or might not turn out to be so affected by the prospect of a death sentence in the case before them that they render a biased judgment; typically neither eventuality can be divined at the voir dire stage. If under our Constitution we viewed the disadvantage to the defendant from exclusion of unbiased prospective jurors opposed to the death penalty as equivalent to the disadvantage to the prosecution from inclusion of a biased prospective juror, then the law would impose no particular burden favoring or disfavoring exclusio Because at least until *445 today we viewed the risks to a defendant's Sixth Amendment rights from a jury from which those who oppose capital punishment have been excluded as far more serious than the risk to the State from inclusion of particular jurors whose views about the death penalty might turn out to predispose them toward the defendant, we placed on the State an extremely high burden to justify exclusio Cf. In re at ; To protect the rights of the capital defendant prohibits exclusion of the ambiguous, evasive, or uncertain juror. Later cases came to see the essence of as being embedded in the language of footnote 21 of that case. See The crucial portion of the footnote reads: "[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." -523, 21 This particular two-part inquiry, as the Court today correctly notes, ante, at 419, carries no talismanic significance. Its purpose is to expose the ability vel non of a juror to follow *44 instructions and abide by an oath with respect to both sentencing (the first prong) and determining guilt or innocence (the second prong).[] We have held that different forms of inquiry passed muster under so long as they were similarly directed at ascertaining whether a juror could follow instructions and abide by an oath. E. g., -45; That permissible inquiries may depart from the language of footnote 21 does not mean, however, that the State may ignore 's strict standards of proof for exclusion when a different form of inquiry is put to the prospective juror. We have repeatedly stressed that the essence of is its requirement that only jurors who make it unmistakably clear that their views about capital punishment would prevent or substantially impair them from following the law may be excluded. ; Thus in summarily reversing several state-court decisions, this Court invalidated death sentences imposed by from which jurors had been excluded because their voir dire responses indicated ambiguity or uncertainty as to whether their views about capital punishment would affect their ability to be rev'g ; v. Washington, rev'g ; rev'g 52 N. J. 238, And in we approved exclusions because the excused prospective jurors had made it " `unmistakably clear' " that *447 they could not take an oath to be (quoting ). Most recently, in this Court reaffirmed that exclusion absent a juror's unambiguously stated inability to follow the law and abide by an oath was constitutionally 448 U.S., B A comprehensive understanding of the principles of makes clear that the decision of the Court of Appeals below was correct. The court below faithfully sought to implement 's accommodation of the interests of the defendant in avoiding a jury " `uncommonly willing to condemn a man to die,' " (quoting at ), and of the State in "the necessity of excusing for cause those prospective jurors who, because of their lack of impartiality from holding unusually strong views against the death penalty, would frustrate a state's legitimate effort to administer an otherwise constitutionally |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | frustrate a state's legitimate effort to administer an otherwise constitutionally valid death penalty scheme." 714 F.2d, at Following the court below articulated an accurate understanding of the stringent burdens of proof places on the State: "[A] prospective juror must be permitted great leeway in expressing opposition to the death penalty before he or she qualifies for dismissal for cause. A prospective juror may even concede that his or her feelings about the death penalty would possibly color an objective determination of the facts of a case without admitting of the necessary partiality to justify excusal." 714 F.2d, at See Applying this correct understanding of the law to the colloquy between the prosecutor and prospective juror Colby, the court held that Colby's "statements fall far short of the certainty *448 required by to justify for cause excusal." The court traced this lack of certainty in part to "the State's failure to frame its questions in an appropriately unambiguous manner," given the standard of proof the State had to meet to justify exclusio Specifically, the court criticized the State's use of the word "interfere" in its examination: "The word `interfere' admits of a great variety of interpretations, and we would find it quite unnatural for a person, who has already expressed her concern about the death penalty, to respond otherwise than that her feelings would `interfere' with, `color,' or `affect' her determinations. Such a response does not indicate an inability, in all cases, to apply the death sentence or to find the defendant guilty where such a finding could lead to capital punishment because it fails to reflect the profundity of any such `interference.' " Though critical of the prosecutor's decision to fashion his questioning around the word "interfere," the court below did not base its decision on this divergence from the precise inquiry of 's footnote[7] Rather, the court relied on 's stringent standards of proof in deciding that the exclusion of Colby was improper. Colby's statement that she thought her personal views about capital punishment might interfere with "judging *449 [the] guilt or innocence [of the defendant]," was, the court held, not a sufficiently unambiguous statement of inability to follow instructions or abide by an oath to justify exclusion under applicable principles. This decision is perfectly congruent with our recent holding in 448 U. S., The court therefore ordered resentencing not retrial for Witt in accord with Sixth and Fourteenth Amendment requirements.[8] *450 II A is, ironically, precisely the authority the Court today invokes to reverse the Court of Appeals below. In what must under the circumstances be |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | of Appeals below. In what must under the circumstances be taken as a tacit admission that application of 's stringent standards of proof would validate the decision of the Court of Appeals, the Court casts as a substantial retrenchment; "the standard applied in" claims the Court, "differs markedly from the language of footnote 21 [of ]." Ante, at 4 To the extent the Court reads as eschewing unthinking adherence to the particular two-part inquiry propounded in footnote 21, I have no quarrel. See The Court, however, purports to find in a renunciation of 's stringent standards of proof. Ante, at 421 ("[G]one too is the extremely high burden of proof"). In essence the Court reads as saying that there is no constitutional distinction between exclusion for death penalty bias and exclusion for other types of bias. See Had the Court of Appeals understood that this more lenient exclusion standard governed, today's opinion asserts, it would have realized that the state trial court's voir dire excusal of Colby should not be disturbed. did not, however, desert the principles of It is the Court's brazenly revisionist reading of today that leaves behind. JUSTICE REHNQUIST, dissenting from thought the opinion of the Court "expand[ed]" the scope of 's Virtually all federal and state *451 appellate courts considering claims in light of have read the case as a clear endorsement of the approach encapsulated in footnote See, e. g., ; ; ; ; ; ; ; ; ; One need look no further than the text of to understand why it has been perceived until today as consistent with quoted 's footnote 21 with approval and stated that the test in that footnote was "clearly designed" to accommodate both the State's interest and the defendant's interest. Reaffirming that must be seen as "a limitation on the State's power to exclude," held that "if prospective jurors are barred from jury service because of their views about capital punishment on `any broader basis' than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. " In holding that the State may exclude only those whose views about capital punishment "would prevent or substantially impair" their ability to follow instructions and abide by an oath, the Court made clear that the State may exclude only jurors whose views would lead to "conscious distortion or bias." Nothing in suggests that the Court intended to abandon 's strict standards of proof. The Court's intent to reaffirm these standards is evident in its approving quotation of the "unmistakably clear" language of *452 footnote |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | approving quotation of the "unmistakably clear" language of *452 footnote 21, and, more importantly, in its delineation of the circumstances in which exclusion is explicitly prohibited exclusion of jurors whose views about capital punishment might invest their deliberations with greater 448 U.S., those views would make it emotionally more difficult for them to follow their oaths, ib and those who cannot affirmatively say whether or not their views would distort their determinations, Even those "who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt" may not be excluded if "they aver that they will honestly find the facts if they are convinced beyond [a] reasonable doubt." was true to 's recognition that the Constitution prohibits imposition of a death sentence by a jury from which a juror was excluded on any broader basis than an unambiguous affirmatively stated inability to follow instructions and abide by an oath. The Court today establishes an entirely new standard significantly more lenient than that of The difference does not lie in the freedom of the State to depart from the precise inquiry of 's footnote 21; that freedom, as I have made clear, has long been established. See ; 438 U. S., at The crucial departure is the decision to discard 's stringent standards of proof. The Court no longer prohibits exclusion of uncertain, vacillating, or ambiguous prospective jurors. It no longer requires an unmistakably clear showing that a prospective juror will be prevented or substantially impaired from following instructions and abiding by an oath. Instead the trial judge at voir dire is instructed to evaluate juror uncertainty, ambiguity, or vacillation to decide whether the juror's views about capital punishment "might frustrate administration of a State's death penalty scheme." Ante, *453 at 41[9] If so, that juror may be excluded. In essence, the Court has shifted to the capital defendant the risk of a biased and unrepresentative jury. This result debases the Sixth Amendment's jury guarantees. B Rewriting to suit present purposes, the Court has of course relieved itself of much of its burden of justification; invoking precedent, the Court dodges the obligation to provide support for its decision to deprive the capital defendant of protections long recognized as fundamental. Nonetheless, perhaps in tacit recognition that today's departure calls for an explanation, the Court has offered three reasons for preferring what it misleadingly calls the " test." Ante, at 4 Stripped of their false lustre of precedential force, these justifications neither jointly nor |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | false lustre of precedential force, these justifications neither jointly nor severally support the Court's abandonment of The Court's first justification is linked to changes in the role of in capital cases. Because jurors no longer have the unfettered discretion to impose or withhold capital punishment that they had in and other States at the time of the Court asserts, there is no longer any reason to require empaneling of jurors who will merely consider a sentence of death under some circumstances. The State *454 should be permitted to exclude all jurors unable to follow the guided discretion procedures that, as a result of the Court's Eighth Amendment decisions, now govern capital sentencing. Ante, at 422. In the interest of candor, the Court might have mentioned that precisely this analysis prompted JUSTICE REHNQUIST's dissent in ("[A]t a time when this Court should be re-examining the doctrinal underpinnings of in light of our intervening decisions in capital cases, it instead expands that precedent as if those underpinnings had remained wholly static"). It is most curious that the identical reasoning is now marshaled to justify a "test" purportedly derived from the Court's holding in that case. More to the point, this reasoning does not in any way justify abandonment of the restrictions has placed on the exclusion of prospective jurors. Without a doubt, a State may inquire whether a particular juror will be able to follow his or her oath to abide by the particulars of a guided discretion sentencing approach, and upon receiving an unmistakably clear negative response the State may properly move to exclude that juror. at But the existence of a guided discretion scheme in no way diminishes the defendant's interest in a jury composed of a fair cross section of the community and a jury not "uncommonly willing to condemn a man to die." 391 U. S., at Even under a guided discretion proceeding a juror must have the opportunity to consider all available mitigating evidence, and to decide against imposition of the death sentence in any individual case, Under our Constitution, the capital sentencer must undertake a sensitive " `consideration of the character and record of the individual offender and the circumstances of the particular offense as a[n] indispensable part of the process of inflicting the penalty of death.' " (quoting ). As *455 recognizes, making such judgments "is not an exact science, and the jurors unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths." 448 U.S., That is why the State may not exclude jurors "who frankly concede that |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | the State may not exclude jurors "who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected would be to deprive the defendant of the impartial jury to which he or she is entitled under the law." The risks that sought to minimize through defining high standards of proof for exclusions based on death penalty scruples are, we correctly held in equally prevalent in the context of guided discretion sentencing schemes. As a second justification for the so-called " test" the Court serves up the claim that 's footnote 21 approach was dictum. That footnote 21 might have been dictum is not, of course, an affirmative reason for adopting the particular alternative the Court advances today. Were the claim correct it would merely leave more leeway to depart from the More importantly, the label "dictum" does not begin to convey the status that the restrictions embodied in footnote 21 have achieved in this Court and state and federal courts over the last decade and a half. See 5, 450-451. From and through this Court has applied the strict burdens of proof of 's footnote 21 to invalidate sentences imposed by from which scrupled jurors had been too readily excluded. The Court concedes as much at another point in its opinion when it *45 acknowledges that footnote 21 "se[t] the standard" for subsequent cases. Ante, at 418. The Court's third proffered justification is that the socalled " standard is in accord with the traditional reasons for excluding jurors and with the circumstances under which such determinations are made." Ante, at 423. In essence, the Court argues that the so-called standard should be followed because it excludes jurors for bias on the same grounds and using the same standards as would be used for exclusion based on any other type of bias: "exclu[sion of] jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias" Ante, at 429. This position is at the core of the Court's holding in this case, but between this position and the basic principles of lies an unbridgeable chasm. The crux of was its recognition of a constitutionally significant distinction between exclusion of jurors opposed to capital punishment and exclusion of jurors for the "innumerable other reasons which result in bias." |
Justice Brennan | 1,985 | 13 | dissenting | Wainwright v. Witt | https://www.courtlistener.com/opinion/111303/wainwright-v-witt/ | jurors for the "innumerable other reasons which result in bias." Ante, at 429. The very nature of a challenge illuminates the difference. In typical cases involving an allegation of juror bias unrelated to death penalty scruples, the convicted defendant challenges the inclusion of particular jurors. E. g., ; In a case the convicted defendant challenges the exclusion of particular jurors. If, as the Court suggests, the only interest at stake in a case is the equivalent right of the defendant and the State to impartial individual jurors, ante, at 423, then the entire thrust of the inquiry makes no sense. To be relevant to the right the Court claims is at stake, the inquiry would have to focus on whether the individual jurors who replaced the excluded prospective jurors were impartial; if so, then no harm would result from the exclusion of particular prospective jurors, whatever the reason for the exclusio *457 of course, focused on the very different sort of injury that might result from systematic exclusion of those opposed to capital punishment: the risk of hanging 391 U.S., at 20, from which a distinct segment of the community has been excluded. 's prohibition against presuming bias and its requirement of an unmistakably clear showing of actual bias sufficient to prevent or substantially impair a juror's ability to abide by an oath are the means by which the risk of constitutional injury is minimized. The Court today eliminates both protections. It rejects the rule that stricter standards govern death-qualification, and as a justification for doing so indulges precisely the presumption of bias prohibited: "we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor." Ante, at 423 The trick in the majority opinion should by now be clear. The Court simply refuses to recognize the constitutional rights 's stringent standards of proof were designed to safeguard. The Court limits the Sixth Amendment to the partiality vel non of individual jurors; "[h]ere, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts." Ante, at 423 As today's opinion would have it, the Sixth Amendment has nothing to say about the overall composition of the jury, and in particular about the capital defendant's right to a jury not predisposed toward the death sentence and representative of a fair cross section of the community. A defendant's established right to a jury that reflects the community's judgment |
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