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Justice Breyer
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majority
Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
The Rules of Construction Act defines a “vessel” as in- cluding “every description of watercraft or other ificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S. C. The question before us is whether petitioner’s floating home (which is not self- propelled) falls within the terms of that definition. In answering that question we focus primarily upon the phrase “capable of being used.” This term encompasses “practical” possibilities, not “merely theoretical” ones. We believe that a reasonable observer, looking to the home’s physical characteristics and activities, would not consider it to be designed to any practical degree for carry- ing people or things on water. And we consequently con- clude that the floating home is not a “vessel.” I In 2002 Fane Lozman, petitioner, bought a 60-foot by 12-foot floating home. App. 37, 71. The home consisted of a house-like plywood structure with French doors on three sides. It contained a sitting room, bedroom, 2 LOZMAN v. RIVIERA BEACH Opinion of the Court closet, bathroom, and kitchen, along with a stairway leading to a second level with office space. at 45–66. An empty bilge space underneath the main floor kept it afloat. (See Appendix, infra, for a photograph.) After buying the floating home, Lozman had it towed about 200 miles to North Bay Village, Florida, where he moored it and then twice more had it towed between nearby marinas. In Lozman had the home towed a further 70 miles to a marina owned by the city of Riviera Beach (City), respondent, where he kept it docked. Brief for Respondent 5. After various disputes with Lozman and unsuccessful efforts to evict him from the marina, the City brought this federal admiralty lawsuit in rem against the floating home. It sought a maritime lien for dockage fees and damages for trespass. See Federal Maritime Lien Act, 46 U.S. C. (authorizing federal maritime lien against vessel to collect debts owed for the provision of “neces- saries to a vessel”); 28 U.S. C. (civil admiralty jurisdiction). See (1); The Rock Island Bridge, Lozman, acting pro se, asked the District Court to dis- miss the suit on the ground that the court lacked admi- ralty jurisdiction. See 2 Record, Doc. 64. After summary judgment proceedings, the court found that the floating home was a “vessel” and concluded that admiralty juris- diction was consequently proper. Pet. for Cert. 42a. The judge then conducted a bench trial on the merits and awarded the City $3,039.88 for dockage along with $1 in nominal damages for trespass. at 49a. On appeal the
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
in nominal damages for trespass. at 49a. On appeal the Eleventh Circuit affirmed. Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approx- imately Fifty-Seven Feet in Length, It agreed with the District Court that the home was a “vessel.” In its view, the home was “capable” of movement over water and the owner’s subjective intent to remain Cite as: 568 U. S. (2013) 3 Opinion of the Court moored “indefinitely” at a dock could not show the con- trary. 267–1269. Lozman sought certiorari. In light of uncertainty among the Circuits about application of the term “capable” we granted his petition. Compare De La (structure is not a “vessel” where “physically,” but only “theoretical[ly],” “capable of sailing,” and owner intends to moor it indef- initely as floating casino), with Board of Comm’rs of Or- leans Levee 11–12 (CA11 2008) (structure is a “vessel” where capable of moving over water under tow, “albeit to her detriment,” despite intent to moor indefinitely). See (rejecting views of Circuits that “ ‘focus on the intent of the shipowner’ ”). II At the outset we consider one threshold matter. The District Court ordered the floating home sold to satisfy the City’s judgment. The City bought the home at public auction and subsequently had it destroyed. And, after the pies filed their merits briefs, we ordered further brief- ing on the question of mootness in light of the home’s destruction. 567 U. S. (2012). The pies now have pointed out that, prior to the home’s sale, the District Court ordered the City to post a $25,000 bond “to secure Mr. Lozman’s value in the vessel.” 1 Record, Doc. 20, p. 2. The bond ensures that Lozman can obtain monetary relief if he ultimately prevails. We consequently agree with the pies that the case is not moot. III A We focus primarily upon the statutory phrase “capable of being used as a means of transportation on water.” 1 U.S. C. The Court of Appeals found that the home 4 LOZMAN v. RIVIERA BEACH Opinion of the Court was “capable” of transportation because it could float, it could proceed under tow, and its shore connections (power cable, water hose, rope lines) did not “ ‘rende[r]’ ” it “ ‘prac- tically incapable of transportation or movement.’ ” 649 F. 3d, 266 (quoting Belle of in turn quoting ). At least for argument’s sake we agree with the Court of Appeals about the last-mentioned point, namely that Lozman’s shore connections did not “ ‘render’ ” the home “ ‘practically inca- pable of transportation.’ ” But unlike the Eleventh Circuit, we
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
pable of transportation.’ ” But unlike the Eleventh Circuit, we do not find these considerations (even when combined with the home’s other characteristics) sufficient to show that Lozman’s home was a “vessel.” The Court of Appeals recognized that it had applied the term “capable” Indeed, it pointed with approval to language in an earlier case, in which the Fifth Circuit said: “ ‘No doubt the three men in a tub would fit with- in our definition, and one probably could make a con- vincing case for Jonah inside the whale.’ ” 649 F. 3d, 269 (brackets omitted) (quoting at 75). But the Eleventh Circuit’s interpretation is too broad. Not every floating structure is a “vessel.” To state the obvious, a wooden washtub, a plastic dishpan, a swimming plat- form on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not “vessels,” even if they are “ificial contrivance[s]” capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so. Rather, the statute applies to an “ificial contrivance capable of being used as a means of transportation on water.” 1 U.S. C. (emphasis added). “[T]ransportation” involves the “conveyance (of things or persons) from one place to Cite as: 568 U. S. (2013) 5 Opinion of the Court another.” 18 Oxford English Dictionary 424 (2d ed. 1989) (OED). Accord, N. Webster, An American Dictionary of the English Language 1406 (C. Goodrich & N. Porter eds. 3) (“[t]he act of transporting, carrying, or conveying from one place to another”). And we must apply this definition in a “practical,” not a “theoretical,” way. Stew- at Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s phys- ical characteristics and activities, would consider it de- signed to a practical degree for carrying people or things over water. B Though our criterion is general, the facts of this case illustrate more specifically what we have in mind. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering Its hull was unraked, and it had a rectangular bottom 10 inches below the water. Brief for Petitioner 27; App. 37. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connec- tions with the land. Its small rooms looked like ordinary nonmaritime living quers. And those
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
small rooms looked like ordinary nonmaritime living quers. And those inside those rooms looked out upon the world, not through water- tight portholes, but through French doors or ordinary windows. at 44–66. Although lack of self-propulsion is not dispositive, e.g., The Robert W. Parsons, it may be a relevant physical characteristic. And Lozman’s home differs significantly from an ordinary houseboat in that it has no ability to propel itself. Cf. (2012) (“Houseboat means a motorized vessel designed pri- marily for multi-purpose accommodation spaces with low 6 LOZMAN v. RIVIERA BEACH Opinion of the Court freeboard and little or no foredeck or cockpit” (emphasis added)). Lozman’s home was able to travel over water only by being towed. Prior to its arrest, that home’s travel by tow over water took place on only four occasions over a period of seven And when the home was towed a significant distance in the towing com- pany had a second boat follow behind to prevent the home from swinging dangerously from side to side. App. 104. The home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects. In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for “transportation on water.” C Our view of the statute is consistent with its text, prece- dent, and relevant purposes. For one thing, the statute’s language, read naturally, lends itself to that interpreta- tion. We concede that the statute uses the word “every,” referring to “every description of watercraft or other ifi- cial contrivance.” 1 U.S. C. (emphasis added). But the term “contrivance” refers to “something contrived for, or employed in contriving to effect a purpose.” 3 OED 850 (def. 7). The term “craft” explains that purpose as “water carriage and transport.” (de- fining “craft” as a “vesse[l] for” that purpose). The ad- dition of the word “water” to “craft,” yielding the term “watercraft,” emphasizes the point. And the next few words, “used, or capable of being used, as a means of transporta- tion on water,” drive the point home. For another thing, the bulk of precedent supports our conclusion. In & Bowling Green Packet Co. v. Chero Cola Bottling Co., the Court held that a wharfboat was not a “vessel.” The wharfboat floated next to a dock; it was used to transfer cargo from Cite as: 568 U. S. (2013) 7 Opinion of the Court ship to dock and ship to ship; and it was connected to the dock
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
ship to ship; and it was connected to the dock with cables, utility lines, and a ramp. 1. At the same time, it was capable of being towed. And it was towed each winter to a harbor to avoid river ice. 0–21. The Court reasoned that, despite the annual movement under tow, the wharfboat “was not used to carry freight from one place to another,” nor did it “en- counter perils of navigation to which craft used for trans- portation are exposed.” 2. (See Appendix, infra, for photograph of a period wharfboat). The Court’s reasoning in supports our conclusion. We there considered the application of the statutory definition to a The dredge was “a massive floating platform” from which a suspended clamshell bucket would “remov[e] silt from the ocean floor,” depositing it “onto one of two scows” floating alongside the Like more traditional “seagoing vessels,” the dredge had, e.g., “a captain and crew, navigational lights, ballast tanks, and a crew dining area.” Unlike more ordinary vessels, it could navi- gate only by “manipulating its anchors and cables” or by being towed. Nonetheless it did move. In fact it moved over water “every couple of hours.” We held that the dredge was a “vessel.” We wrote that ’s definition “merely codified the meaning that the term ‘vessel’ had acquired in general maritime law.” We added that the question of the “watercraft’s use ‘as a means of transportation on water’ is practical,” and not “merely theoretical.” at And we pointed to cases holding that dredges ordinarily “served a waterborne transportation function,” namely that “in performing their work they carried machinery, equipment, and crew over water.” at 491–492 (citing, e.g., Butler v. Ellis, 45 F.2d 951, 955 (CA4 1930)). As the Court of Appeals pointed out, in we wrote that “does not require that a watercraft be used 8 LOZMAN v. RIVIERA BEACH Opinion of the Court primarily for that [transportation] purpose,” 543 U. S., at 495; that a “watercraft need not be in motion to qualify as a vessel,” ; and that a structure may qualify as a vessel even if attached—but not “permanently” attached— to the land or ocean floor. at 493–494. We did not take these statements, however, as implying a universal set of sufficient conditions for application of the definition. Rather, they say, and they mean, that the statutory defi- nition may (or may not) apply—not that it automatically must apply—where a structure has some other primary purpose, where it is stationary at relevant times, and where it is attached—but not permanently attached—to land. After all, a washtub is
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
attached—but not permanently attached—to land. After all, a washtub is normally not a “vessel” though it does not have water transportation as its primary pur- pose, it may be stationary much of the time, and it might be attached—but not permanently attached—to land. More to the point, water transportation was not the pri- mary purpose of either ’s dredge or ’s wharfboat; neither structure was “in motion” at relevant times; and both were sometimes attached (though not permanently attached) to the ocean bottom or to land. Nonetheless ’s dredge fell within the statute’s definition while ’s wharfboat did not. The basic difference, we believe, is that the dredge was regularly, but not primarily, used (and designed in p to be used) to transport workers and equipment over water while the wharfboat was not designed (to any practical degree) to serve a transportation function and did not do so. Compare (1887) (floating drydock not a “vessel” because permanently fixed to wharf), with Jerome B. Grub, (barge sometimes attached to river bottom to use as a work plat- form remains a “vessel” when “at other times it was used for transportation”). See (citing Great Lakes Cite as: 568 U. S. (2013) 9 Opinion of the Court Dredge & Dock (“[A] craft is a ‘vessel’ if its purpose is to some reasonable degree ‘the transportation of passengers, cargo, or equip- ment from place to place across navigable waters’ ”)); Cope, (describing “hopper-barge,” as potentially a “vessel” because it is a “navigable structure[,] used for the purpose of transportation”); cf. 1 Benedict on Admiralty p. 10–6 (7th rev. ed. 2012) (maritime jurisdiction proper if “the craft is a navigable structure intended for maritime transportation”). Lower court cases tend, on balance, to support our conclusion. See, e.g., Bernard v. Binnings Constr. Co., 741 F.2d 824, 828, n. 13, 832, n. 25 (CA5 1984) (work punt lacking features objectively indicating a transportation function not a “vessel,” for “our decisions make clear that the mere capacity to float or move across navigable waters does not necessarily make a structure a vessel”); Rud- (scow, though “capable of being towed though not without some difficulty, from its clumsy structure” just a floating box, not a “vessel,” because “it was not designed or used for the purpose of navigation,” not engaged “in the trans- portation of persons or cargo,” and had “no motive power, no rudder, no sails”). See 1 T. Schoenbaum, Admi- ralty and Maritime Law –6, p. 155 (courts have found that “floating dry-dock[s],” “floating platforms, barges, or rafts used for construction or repair of piers, docks, bridges,
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
rafts used for construction or repair of piers, docks, bridges, pipelines and other” similar facilities are not “vessels”); E. Benedict, American Admiralty §, p. 116 (3d rev. ed. 1898) (defining “vessel” as a “ ‘machine adapted to transportation over rivers, seas, and oceans’ ”). We recognize that some lower court opinions can be read as endorsing the “anything that floats” approach. See Miami River Boat Yard, Inc. v. 60’ Houseboat, 390 F.2d 596, 597 (CA5 1968) (so-called “houseboat” lacking self- propulsion); Sea Village Marina, LLC v. A 1980 Carlcraft 10 *5–*6 (D NJ, Oct. 19, 2009) (following Miami River Boat Yard); Hudson Harbor 79th Street Boat Basin, Inc. v. Sea Casa, 469 F. Supp. 987, 989 (SDNY 1979) (same). Cf. (floating dor- mitory); Summerlin v. Massman Constr. Co., 199 F.2d 715 (CA4 1952) (derrick anchored in the river engaged in building a bridge is a vessel). For the reasons we have stated, we find such an approach inappropriate and incon- sistent with our precedents. Further, our examination of the purposes of major fed- eral maritime statutes reveals little reason to classify floating homes as “vessels.” Admiralty law, for example, provides special attachment procedures lest a vessel avoid liability by sailing away. 46 U.S. C. §1341–343 ( ed. and Supp. IV). Liability statutes such as the Jones Act recognize that sailors face the special “ ‘perils of the sea.’ ” Chandris, (referring to “ ‘vessel[s] in navigation’ ”). Certain admiralty tort doctrines can encourage shipowners to engage in port-related commerce. E.g., 46 U.S. C. 0505; Executive Jet Aviation, 269–270 (1972). And maritime safety statutes subject vessels to U. S. Coast Guard inspections. E.g., 46 U.S. C. 301. Lozman, however, cannot easily escape liability by sailing away in his home. He faces no special sea dangers. He does not significantly engage in port-related commerce. And the Solicitor General tells us that to adopt a version of the “anything that floats” test would place unneces- sary and undesirable inspection burdens upon the Coast Guard. Brief for United States as Amicus Curiae 29, n. 11. Finally, our conclusion is consistent with state laws in States where floating home owners have congregated in communities. See Brief for Seattle Floating Homes As- sociation et al. as Amici Curiae 1. A Washington State Cite as: 568 U. S. (2013) 11 Opinion of the Court environmental statute, for example, defines a floating home (for regulatory purposes) as “a single-family dwell- ing unit constructed on a float, that is moored, anchored, or otherwise secured in waters, and is not a vessel, even though it may be capable of being
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
a vessel, even though it may be capable of being towed.” Wash. Rev. Code Ann. (Supp. 2012). A California statute defines a floating home (for tax purposes) as “a floating structure” that is “designed and built to be used, or is modified to be used, as a stationary waterborne resi- dential dwelling,” and which (unlike a typical houseboat), has no independent power generation, and is dependent on shore utilities. Cal. Health & Safety Code Ann. These States, we are told, treat structures that meet their “floating home” definitions like ordinary land-based homes rather than like vessels. Brief for Seattle Floating Homes Association 2. Consistency of interpretation of related state and federal laws is a virtue in that it helps to create simplicity making the law easier to understand and to follow for lawyers and for nonlaw- yers alike. And that consideration here supports our conclusion. D The City and supporting amici make several important arguments that warrant our response. First, they ar- gue against use of any purpose-based test lest we intro- duce into “vessel” determinations a subjective element— namely, the owner’s intent. That element, they say, is often “unverifiable” and too easily manipulated. Its intro- duction would “foment unpredictability and invite games- manship.” Brief for Respondent 33. We agree with the City about the need to eliminate the consideration of evidence of subjective intent. But we cannot agree that the need requires abandonment of all criteria based on “purpose.” Cf. (discussing transportation purpose). Indeed, it is difficult, 12 LOZMAN v. RIVIERA BEACH Opinion of the Court if not impossible, to determine the use of a human “con- trivance” without some consideration of human purposes. At the same time, we have sought to avoid subjective elements, such as owner’s intent, by permitting considera- tion only of objective evidence of a waterborne transporta- tion purpose. That is why we have referred to the views of a reasonable And it is why we have looked to the physical attributes and behavior of the struc- ture, as objective manifestations of any relevant purpose, and not to the subjective intent of the at 5–6. We note that various admiralty treatises refer to the use of purpose-based tests without any suggestion that administration of those tests has introduced too much subjectivity into the vessel-determination process. 1 Benedict on Admiralty 1 Admiralty and Maritime Law –6. Second, the City, with support of amici, argues against the use of criteria that are too abstract, complex, or open- ended. Brief for Respondent 28–29. A court’s jurisdiction, e.g., admiralty jurisdiction, may turn on application of the term “vessel.” And
Justice Breyer
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
jurisdiction, may turn on application of the term “vessel.” And jurisdictional tests, often applied at the outset of a case, should be “as simple as possible.” Hertz Corp. v. Friend, 559 U.S. (2010) (slip op., ). We agree with the last-mentioned sentiment. And we understand that our approach is neither perfectly pre- cise nor always determinative. Satisfaction of a design- based or purpose-related criterion, for example, is not always sufficient for application of the statutory word “vessel.” A craft whose physical characteristics and activi- ties objectively evidence a waterborne transportation purpose or function may still be rendered a nonvessel by later physical alterations. For example, an owner might take a structure that is otherwise a vessel (even the Queen Mary) and connect it permanently to the land for use, say, as a hotel. See at 493–494. Further, Cite as: 568 U. S. (2013) 13 Opinion of the Court changes over time may produce a new form, i.e., a newly designed structure—in which case it may be the new de- sign that is relevant. See Kathriner v. Unisea, Inc., 975 F.2d 657, 660 (CA9 1992) (floating processing plant was no longer a vessel where a “large opening [had been] cut into her hull”). Nor is satisfaction of the criterion always a necessary condition, see P IV, infra. It is conceivable that an owner might actually use a floating structure not designed to any practical degree for transportation as, say, a ferry boat, regularly transporting goods and persons over water. Nonetheless, we believe the criterion we have used, taken together with our example of its application here, should offer guidance in a significant number of borderline cases where “capacity” to transport over water is in doubt. Moreover, borderline cases will always exist; they require a method for resolution; we believe the method we have used is workable; and, unlike, say, an “anything that floats” test, it is consistent with statutory text, purpose, and precedent. Nor do we believe that the dissent’s ap- proach would prove any more workable. For example, the dissent suggests a relevant distinction between an own- er’s “clothes and personal effects” and “large appliances (like an oven or a refrigerator).” Post, at 8 (opinion of SOTOMAYOR, J.). But a transportation function need not turn on the size of the items in question, and we believe the line between items being transported from place to place (e.g., cargo) and items that are mere appurtenances is the one more likely to be relevant. Cf. Benedict, Ameri- can Admiralty 21 (“A ship is usually described as consisting of the ship, her tackle,
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Lozman v. Riviera Beach
https://www.courtlistener.com/opinion/815320/lozman-v-riviera-beach/
is usually described as consisting of the ship, her tackle, apparel, and furniture”). Finally, the dissent and the Solicitor General (as amicus for Lozman) argue that a remand is warranted for further factfinding. See post, 0–12; Brief for United States as Amicus Curiae 29–. But neither the City nor Lozman 14 LOZMAN v. RIVIERA BEACH Opinion of the Court makes such a request. Brief for Respondent 18, 49, 52. And the only potentially relevant factual dispute the dis- sent points to is that the home suffered serious damage during a tow. Post, 0–11. But this would add support to our ultimate conclusion that this floating home was not a vessel. We consequently see nothing to be gained by a remand. IV Although we have focused on the phrase “capable of be- ing used” for transportation over water, the statute includes as a “vessel” a structure that is actually “used” for that transportation. 1 U.S. C. (emphasis added). And the City argues that, irrespective of its design, Loz- man’s floating home was actually so used. Brief for Respondent 32. We are not persuaded by its argument. We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transpor- tation a structure that is in no practical way designed for that purpose. See 2–13. But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s 649 F. 3d, 268; Brief for Respondent 32; Tr. of Oral Arg. 37–38. This is far too little actual “use” to bring the floating home within the terms of the statute. See 271 U. S., 0–21 (wharfboat not a “ves- sel” even though “[e]ach winter” it “was towed to [a] har- bor to protect it from ice”); see (“Unlike a barge, the S. S. Harry Lane was not moved in order to transport commodities from one location to another”). See at 6–11. Cite as: 568 U. S. (2013) 15 Opinion of the Court V For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered. 16 LOZMAN v. RIVIERA BEACH Opinion of the Court Appendix to opinion of the Court APPENDIX Petitioner’s floating home. App. 69. Cite as: 568 U. S. (2013) 17 Opinion
Justice Marshall
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Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
Some private pension plans reduce a retiree's pension benefits by the amount of workers' compensation awards received subsequent to retirement. In these cases we consider whether two such offset provisions are lawful under the Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S. C. 1001 et seq. (1976 ed. and Supp. III), and whether they may be prohibited by state law. I Raybestos-Manhattan, Inc., and General Motors maintain employee pension plans that are subject to federal regulation under Both plans provide that an employee's retirement benefits shall be reduced, or offset, by an amount equal to workers' compensation awards for which the individual is eligible.[1] In 1977, the New Jersey Legislature *508 amended its Workers' Compensation Act to expressly prohibit such offsets. The amendment states that "[t]he right of compensation granted by this chapter may be set off against disability pension benefits or payments but shall not be set off against employees' retirement pension benefits or payments." N. J. Stat. Ann. 34:15-29 (as amended by 1977 N. J. Laws, ch. 156). Alleging violations of this provision of state law, two suits were initiated in New Jersey state court. The plaintiffs in both suits were retired employees who had obtained workers' compensation awards subject to offsets against their retirement benefits under their pension plans.[2] The defendant companies independently removed the suits to the United States District Court for the District of New Jersey. There, both District Court Judges ruled that the pension offset provisions were invalid under New Jersey law, and concluded that Congress had not intended ERISA to pre-empt state laws of this sort. The District Court Judges also held that the offsets were prohibited by of ERISA, 29 U.S. C. 1053 This section prohibits forfeitures of vested pension rights except under four specific conditions inapplicable to these cases.[3] The judges concluded that offsets based on workers' compensation awards would be forbidden forfeitures, *509 and struck down a contrary federal Treasury Regulation authorizing such offsets.[4] The United States Court of Appeals for the Third Circuit consolidated the appeals from these two decisions and reversed. It rejected the District Court Judges' view that the offset provisions caused a forfeiture of vested pension rights forbidden by 1053. Instead, the Court of Appeals reasoned, such offsets merely reduce pension benefits in a fashion expressly approved by ERISA for employees receiving Social Security benefits. Accordingly, the Court of Appeals found no conflict between ERISA and the Treasury Regulation approving reductions based on workers' compensation awards and Finally, the court concluded that the New Jersey statute forbidding offsets of pension benefits by
Justice Marshall
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Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
the New Jersey statute forbidding offsets of pension benefits by the amount of workers' compensation awards could not withstand ERISA's general pre-emption provision, 29 U.S. C. 1144 We noted probable jurisdiction of the appeal taken by the former employees of Raybestos-Manhattan, Inc., and granted certiorari on the petition of former employees of General Motors For convenience, we refer to the former employees in both cases as retirees. We affirm the judgment of the Court of Appeals. II Retirees claim that the workers' compensation offset provisions of their pension plans contravene ERISA's nonforfeiture provisions and that the Treasury Regulation to the contrary is inconsistent with the Act. Both claims require examination of the relevant sections of *510 A As we recently observed, ERISA is a "comprehensive and reticulated statute," which Congress adopted after careful study of private retirement pension plans. Nachman In Nachman, we observed that Congress through ERISA wanted to ensure that "if a worker has been promised a defined pension benefit upon retirement—and if he has fulfilled whatever conditions are required to obtain a vested benefit— he actually receives it."[5] For this reason, the concepts of vested rights and nonforfeitable rights are critical to the ERISA scheme. See ERISA prescribes vesting and accrual schedules, assuring that employees obtain rights to at least portions of their normal pension benefits even if they leave their positions prior to retirement.[6] Most critically, ERISA establishes that "[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable *511 upon the attainment of normal retirement age." 29 U.S. C. 1053[7] Retirees rely on this sweeping assurance that pension rights become nonforfeitable in claiming that offsetting those benefits with workers' compensation awards violates Retirees argue first that no vested benefits may be forfeited except as expressly provided in 1053. Second, retirees assert that offsets based on workers' compensation fall into none of those express exceptions. Both claims are correct; 1053 prohibits forfeitures of vested rights except as expressly provided in 1053 (3), and the challenged workers' compensation offsets are not among those permitted in that section.[8] Despite this facial accuracy, retirees' argument overlooks a threshold issue: what defines the content of the benefit that, once vested, cannot be forfeited? ERISA leaves this question largely to the private parties creating the plan. That the private parties, not the Government, control the level of benefits is clear from the statutory language defining nonforfeitable rights as well as from other portions of ERISA defines a "nonforfeitable" pension benefit or right as "a claim obtained by a participant or his beneficiary to that part
Justice Marshall
1,981
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Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan." *512 29 U.S. C. 1002 (19). In construing this definition last Term, we observed: "[T]he term `forfeiture' normally connotes a total loss in consequence of some event rather than a limit on the value of a person's rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in [ 1053 (3)] describes an event—such as death or temporary re-employment— that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of "nonforfeitable" to view it as describing the quality of the participant's right to a pension rather than a limit on the amount he may collect." Nachman -373. Similarly, the statutory definition of "nonforfeitable" assures that an employee's claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, "it is the claim to the benefit, rather than the benefit itself, that must be `unconditional' and `legally enforceable against the plan.'" Rather than imposing mandatory pension levels or methods for calculating benefits, Congress in ERISA set outer bounds on permissible accrual practices, 29 U.S. C. 1054 (b) (1), and specified three alternative schedules for the vesting of pension rights, 29 U.S. C. 1053 (2). In so doing, Congress limited the variation permitted in accrual rates applicable across the entire period of an employee's participation in the pension plan.[9] And Congress disapproved *513 pension practices unduly delaying an employee's acquisition of a right to enforce payment of the portion of benefits already accrued, without further employment.[10] These provisions together assure at minimum a legally enforceable claim to 100% of the pension benefits created by a covered plan for those employees who have completed 15 years of service and for those employees aged 45 or older who have completed 10 years of service.[11] Other than these restrictions, ERISA permits the total benefit levels and formulas for determining their accrual before completion of 15 years of service to vary *514 from plan to plan. See 29 U.S. C. 1002 (22), (23) (benefits defined merely as those "under the plan"). It is particularly pertinent for our purposes that Congress did not prohibit "integration," a calculation practice under which benefit levels are determined by combining pension funds with other income streams
Justice Marshall
1,981
15
majority
Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
are determined by combining pension funds with other income streams available to the retired employees. Through integration, each income stream contributes for calculation purposes to the total benefit pool to be distributed to all the retired employees, even if the nonpension funds are available only to a subgroup of the employees. The pension funds are thus integrated with the funds from other income maintenance programs, such as Social Security, and the pension benefit level is determined on the basis of the entire pool of funds. Under this practice, an individual employee's eligibility for Social Security would advantage all participants in his private pension plan, for the addition of his anticipated Social Security payments to the total benefit pool would permit a higher average pension payout for each participant. The employees as a group profit from that higher pension level, although an individual employee may reach that level by a combination of payments from the pension fund and payments from the other income maintenance source. In addition, integration allows the employer to attain the selected pension level by drawing on the other resources, which, like Social Security, also depend on employer contributions. Following its extensive study of private pension plans before the adoption of ERISA, Congress expressly preserved the option of pension fund integration with benefits available under both the Social Security Act, 42 U.S. C. 401 et seq. (1976 ed. and Supp. III), and the Railroad Retirement Act of 1974, 45 U.S. C. 231 et seq. (1976 ed. and Supp. III); 29 U.S. C. 1054 (b) (1) (B) (iv), 1054 (b) (1) (C), 1054 (b) (1) (G). Congress was well aware that pooling of nonpension retirement benefits and pension funds would limit *515 the total income maintenance payments received by individual employees and reduce the cost of pension plans to employers. Indeed, in considering this integration option, the House Ways and Means Committee expressly acknowledged the tension between the primary goal of benefiting employees and the subsidiary goal of containing pension costs. The Committee Report noted that the proposed bill would "not affect the ability of plans to use the integration procedures to reduce the benefits that they pay to individuals who are currently covered when social security benefits are liberalized. Your committee, however, believes that such practices raise important issues. On the one hand, the objective of the Congress in increasing social security benefits might be considered to be frustrated to the extent that individuals with low and moderate incomes have their private retirement benefits reduced as a result of the integration procedures. On the other hand, your committee
Justice Marshall
1,981
15
majority
Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
of the integration procedures. On the other hand, your committee is very much aware that many present plans are fully or partly integrated and that elimination of the integration procedures could substantially increase the cost of financing private plans. Employees, as a whole, might be injured rather than aided if such cost increases resulted in slowing down the growth or perhaps even eliminat[ing] private retirement plans." H. R. Rep. No. 93-807, p. 69 (1974), reprinted in 2 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled for the Senate Committee on Labor and Public Welfare) 3189 (1976) (Leg. Hist.).[12] *516 The Committee called for further study of the problem and recommended that Congress impose a restriction on integration of pension benefits with Social Security and Railroad Retirement payments. Congress adopted this recommendation and forbade any reductions in pension payments based on increases in Social Security or Railroad Retirement benefits authorized after ERISA took effect. 29 U.S. C. 1056 (b). See 29 U.S. C. 1054 (b)(1)(B)(iv), 1054 (b)(1)(C); H. R. Rep. No. 93-807, at 69, 2 Leg. Hist. 3189. See also 26 U.S. C. 401 (15). In setting this limitation on integration with Social Security and Railroad Retirement benefits, Congress acknowledged and accepted the practice, rather than prohibiting it. Moreover, in permitting integration at least with these federal benefits, Congress did not find it necessary to add an exemption for this purpose to its stringent nonforfeiture protections in 29 U.S. C. 1053 Under these circumstances, we are unpersuaded by retirees' claim that the nonforfeiture provisions by their own force prohibit any offset of pension benefits by workers' compensation awards. Such offsets work much like the integration of pension benefits with Social Security or Railroad Retirement payments. The individual employee remains entitled to the established pension level, but the payments received from the pension fund are reduced by the amount received through workers' compensation. The nonforfeiture provision of 1053 has no more applicability to this kind of integration than it does to *517 the analogous reduction permitted for Social Security or Railroad Retirement payments. Indeed, the same congressional purpose—promoting a system of private pensions by giving employers avenues for cutting the cost of their pension obligations—underlies all such offset possibilities. Nonetheless, ERISA does not mention integration with workers' compensation, and the legislative history is equally silent on this point. An argument could be advanced that Congress approved integration of pension funds only with the federal benefits expressly mentioned in the Act. A current regulation issued by the Internal Revenue Service, however, goes further, and permits integration with
Justice Marshall
1,981
15
majority
Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
Internal Revenue Service, however, goes further, and permits integration with other benefits provided by federal or state law. We now must consider whether this regulation is itself consistent with B Codified at 26 CFR 1.411 -(4) the Treasury Regulation provides that "nonforfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits." The Regulation interprets 26 U.S. C. 411, the section of the Internal Revenue Code which replicates for IRS purposes ERISA's nonforfeiture provision, 29 U.S. C. 1053[13] The Regulation plainly encompasses *518 awards under state workers' compensation laws. In addition, in Revenue Rulings issued prior to ERISA, the IRS expressly had approved reductions in pension benefits corresponding to workers' compensation awards. See, e. g., Rev. Rul. 69-421, Part 4 (j), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157.[14] Retirees contend that the Treasury Regulation and IRS rulings to this effect contravene They object first that ERISA's approval of integration was limited to Social Security and Railroad Retirement payments. This objection is precluded by our conclusion that reduction of pension benefits based on the integration procedure are not per se prohibited by 1053 for the level of pension benefits is not prescribed by Retirees' only remaining objection is that workers' compensation awards are so different in kind from Social Security and Railroad Retirement payments that their integration could not be authorized under the same rubric. Developing this argument, retirees claim that workers' compensation provides payments for work-related injuries, while Social Security and Railroad Retirement supply payments solely for wages lost due to retirement. Because of this distinction, retirees conclude that integration of pension funds with workers' compensation awards lacks the rationale *519 behind integration of pension funds with Social Security and Railroad Retirement. Retirees' claim presumes that ERISA permits integration with Social Security or Railroad Retirement only where there is an identity between the purposes of pension payments and the purposes of the other integrated benefits. But not even the funds that the Congress clearly has approved for integration purposes share the identity of purpose ascribed to them by petitioners. Both the Social Security and Railroad Retirement Acts provide payments for disability as well as for wages lost due to retirement, and ERISA permits pension integration without distinguishing these different kinds of benefits. Furthermore, when it enacted ERISA, Congress knew of the IRS rulings permitting integration and left them
Justice Marshall
1,981
15
majority
Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
knew of the IRS rulings permitting integration and left them in effect.[15] These rulings do not draw the line between permissible *520 and impermissible integration where retirees would prefer them to, and instead they include workers' compensation offsets within the ambit of permissible integration. The IRS rulings base their allowance of pension payment integration on three factors: the employer must contribute to the other benefit funds, these other funds must be designed for general public use, and the benefits they supply must correspond to benefits available under the pension plan. The IRS employed these considerations in approving integration with workers' compensation benefits. E. g., Rev. Rul. 69-421, Part 4 (j), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157. In contrast, the IRS has disallowed offsets of pension benefits with damages recovered by an employee through a common-law action against the employer. Rev. Rul. 69-421, Part 4 (j) (4), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157-158.[16] The IRS also has not permitted *521 integration with reimbursement for medical expenses or with fixed sums made for bodily impairment because such payments do not match up with any benefits available under a pension plan qualified under the Internal Revenue Code and Rev. Rul. 78-178, -1 Cum. Bull. 118.[17] Similarly, the IRS has disapproved integration with unemployment compensation, for, as payment for temporary layoffs, it too is a kind of benefit not comparable to any permitted in a qualified pension plan. Without speaking directly of its own rationale, Congress embraced such IRS rulings. See H. R. Conf. Rep. No. 93-1280, p. 277 (1974), 3 Leg. Hist. 4544 (approving existing antidiscrimination rules). Congress thereby permitted integration along the lines already approved by the IRS, which had specifically allowed pension benefit offsets based on workers' compensation. Our judicial function is not to second-guess the policy decisions of the legislature, no matter how appealing we may find contrary rationales. As a final argument, retirees claim that we should defer to the policy decisions of the state legislature. To this claim we now turn. III The New Jersey Legislature attempted to outlaw the offset clauses by providing that "[t]he right of compensation granted by [the New Jersey Workers' Compensation Act] may be set off against disability pension benefits or payments but shall not be set off against employees' retirement pension benefits or payments." N. J. Stat. Ann. 34:15-29 (emphasis added).[18] To resolve retirees' claim that this state policy should govern, we must determine whether such state laws are pre-empted by Our analysis of this problem must be guided by respect for
Justice Marshall
1,981
15
majority
Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
analysis of this problem must be guided by respect for the separate spheres of governmental authority preserved in our federalist system. Although the Supremacy Clause invalidates state laws that "interfere with, or are contrary to the laws of Congress" the "`exercise of federal supremacy is not lightly to be presumed,'" New York Dept. of Social quoting As we recently reiterated, "[p]reemption of state law by federal statute or regulation is not favored `in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.'" Chicago & North Western Transp. quoting Florida Lime & Avocado See ; ; Rice v. Santa Fe Elevator ; In this instance, we are assisted by an explicit congressional statement about the pre-emptive effect of its action. The same chapter of ERISA that defines the scope of federal protection of employee pension benefits provides that "the provisions of this subchapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003 of this title and not exempt under section 1003 (b) of this title." 29 U.S. C. 1144 *523 This provision demonstrates that Congress intended to depart from its previous legislation that "envisioned the exercise of state regulation power over pension funds," Malone v. White Motor and meant to establish pension plan regulation as exclusively a federal concern.[19] But for the pre-emption provision to apply here, the New Jersey law must be characterized as a state law "that relate[s] to any employee benefit plan." 29 U.S. C. 1144[20] That phrase gives rise to some confusion *524 where, as here, it is asserted to apply to a state law ostensibly regulating a matter quite different from pension plans. The New Jersey law governs the State's workers' compensation awards, which obviously are subject to the State's police power. As a result, one of the District Court Judges below concluded that the New Jersey provision "is in no way concerned with pension plans qua pension plans. On the contrary, the New Jersey statute is solely concerned with protecting the employee's right to worker's compensation disability benefits." Buczynski v. General Motors Similarly, the other District Court Judge below reasoned that the New Jersey law "only has a collateral effect on pension plans." Alessi v. Raybestos-Manhattan, Inc., Civ. No. 78-0434 (NJ, Feb. 15, 1979). The Court of Appeals rejected these analyses on two grounds. It read the "relate to pension plans" language in "its normal dictionary sense" as indicating a broad pre-emptive intent, and
Justice Marshall
1,981
15
majority
Alessi v. Raybestos-Manhattan, Inc.
https://www.courtlistener.com/opinion/110477/alessi-v-raybestos-manhattan-inc/
normal dictionary sense" as indicating a broad pre-emptive intent, and it also reasoned that the "only purpose and effect of the [New Jersey] statute is to set forth an additional statutory requirement for pension plans," a purpose not permitted by We agree with the conclusion reached by the Court of Appeals but arrive there by a different route. Whatever the purpose or purposes of the New Jersey statute, we conclude that it "relate[s] to pension plans" governed by ERISA because it eliminates one method for calculating pension benefits—integration—that is permitted by federal law. ERISA permits integration of pension funds with other public income maintenance moneys for the purpose of calculating benefits, and the IRS interpretation approves integration with the exact funds addressed by the New Jersey workers' compensation law. New Jersey's effort to ban pension benefit offsets based on workers' compensation applies directly to this calculation *525 technique. We need not determine the outer bounds of ERISA's pre-emptive language to find this New Jersey provision an impermissible intrusion on the federal regulatory scheme.[21] It is of no moment that New Jersey intrudes indirectly, through a workers' compensation law, rather than directly, through a statute called "pension regulation." ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern. For the purposes of the pre-emption provision, ERISA defines the term "State" to include: "a State, any political subdivision thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter." 29 U.S. C. 1144 (c) (2) (emphasis added). ERISA's authors clearly meant to preclude the States from avoiding through form the substance of the preemption provision. Another consideration bolsters our conclusion that the New Jersey provision is pre-empted insofar as it bears on pensions regulated by ERISA leaves integration, along with other pension calculation techniques, subject to the discretion of pension plan designers. See Where, as here, the pension plans emerge from collective bargaining, the additional federal interest in precluding state interference with labor-management negotiations calls for pre-emption of state efforts to regulate pension terms. See ; Railway Cf. Motor Coach ; San *526 Diego Building Trades[22] As a subject of collective bargaining, pension terms themselves become expressions of federal law, requiring pre-emption of intrusive state law.[23] IV We conclude that N. J. Stat. Ann. 34:15-29 is pre-empted by federal law insofar as it bears on pension plans governed by We find further that Congress contemplated and approved the kind of pension provisions challenged here, which
Justice Stevens
1,985
16
dissenting
United States v. Albertini
https://www.courtlistener.com/opinion/111487/united-states-v-albertini/
In 1909 Congress enacted a new statute making it a federal crime to trespass on military bases in specified circumstances. That statute, now codified as 18 U.S. C. 1382, provided: "Whoever shall go upon any military reservation, army post, fort, or arsenal, for any purpose prohibited by law or military regulation made in pursuance of law, or whoever shall reenter or be found within any such reservation, post, fort, or arsenal, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both." In my opinion, Congress did not intend to punish a visit to a military reservation under the second clause of this statute when circumstances reasonably indicated that the visit was not prohibited but welcome. In this case, respondent was "removed as a trespasser from Hickam Air Force Base," on March 2, 1972, and "ordered not to reenter."[1] The removal and order not to *692 return apparently were the result of respondent's destruction of Government property valued under $100 during a demonstration against the war in Vietnam.[2] Over nine years later, respondent was "found within such reservation." Among 0,000 other civilians, he had accepted a widely advertised invitation to the public to attend the 32nd Annual Armed Forces Day Open House hosted by Hickam Air Force Base on May 16, 1981. A news release, issued by the Base, stated: "HICKAM HOSTS JOINT SERVICE OPEN HOUSE "Hickam Air Force Base, Hawaii (April 16, 1981) — The 32nd Annual Armed Forces Day Open House will be held here Saturday May 16 from 9 a. m. to 4 p. m. The *693 theme this year is the `U. S. Armed Forces — Strong and Ready.' "Top local, country and western, and military entertainment — provided by the Royal Hawaiian Band, the Aloha Airlines Musical/Hula Troupe, J. T. and the Rowdy Band, Dave West and the Chaingang, Chris Cassidy and the Rainbow Connection, the Skylarks and the Fleet Marine Force Pacific Band — will perform during the open house. "More than 30 aircraft from the U. S. Army, Navy, Air Force, Marine Corps, Coast Guard, Hawaii Army and Air National Guard, Civil Air Patrol and the Wheeler Aero Club will be on display throughout the day. "Parachute jumps by the Navy and the Marine Corps, Marine troops, rappelling from helicopters, aircraft flyovers by the Hawaii Air National Guard, Air Force and the Navy are also scheduled. "Additionally, a crash/rescue demonstration by the Hickam Fire Department, a
Justice Stevens
1,985
16
dissenting
United States v. Albertini
https://www.courtlistener.com/opinion/111487/united-states-v-albertini/
"Additionally, a crash/rescue demonstration by the Hickam Fire Department, a helicopter rescue demonstration by the Coast Guard and several police dog demonstrations by the Hickam Security Police will be conducted that day. "Also open that day is the annual Air Force Hawaii Youth Festival. Carnival rides, games and a midway packed with food and drinks will be the main attractions. Air Force nominees, representing the various commands at Hickam will complete for the crown of Youth Festival Queen. The crowning ceremony will take place Friday evening at 6 p. m. "Hickam, normally a closed base, will be open to the public for the Armed Forces Day Open House." App. 46-47. Radio advertisements extended a similar invitation to the public to attend the open house. In my opinion, respondent's visit to the open house in this case in response to a general invitation to the public extended *694 nine years after he was removed from the base and ordered not to reenter does not involve the kind of reentry that Congress intended to prohibit when it enacted the 1909 statute. In reaching a contrary conclusion, the Court relies heavily on the ordinary meaning of the statutory language, the fact that respondent had committed a misdemeanor on the base in 1972, and the fact that respondent's removal in 1972 was evidenced by a "bar letter." The "plain language" argument proves too much, and the evidentiary arguments prove too little. I In Cafeteria this Court recognized "the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command." In exercising this power, a base commander is only limited by the Constitution and by the standard administrative requirement that "he must not act in an arbitrary or capricious manner. His action must be reasonable in relation to his responsibility to protect and preserve order on the installation and to safeguard persons and property thereon."[3] Even with these limitations, civilians may be removed from military bases for a wide variety of reasons such as reconnoitering military fortifications or troop movements, carrying a concealed weapon or a controlled substance, destroying Government property, creating a disturbance, violating a traffic regulation, attempting to induce a soldier to visit a saloon or to engage in an immoral act, wandering into an area where a training exercise is in progress, or perhaps even "chewing gum in the wrong place." See n. 2, [4] *69 Congress enacted 1382 as a supplement to the military's power to exclude unwelcome civilians from military installations. The Senate and House Committee Reports on the bill explain the reasons for
Justice Stevens
1,985
16
dissenting
United States v. Albertini
https://www.courtlistener.com/opinion/111487/united-states-v-albertini/
House Committee Reports on the bill explain the reasons for enacting 1382: "It is designed to punish persons who, having been ejected from a fort, reservation, etc., return for the purpose of obtaining information respecting the strength, etc., of the fort, etc., or for the purpose of inducing the men to visit saloons, dives, and similar places. Such persons may now go upon forts and reservations repeatedly for such purposes and there is no law to punish them." S. Rep. No. 10, 60th Cong., 1st Sess., 16 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., 16 (1908).[] Section 1382 provides for criminal punishment, in addition to administrative ejectment, for a limited class of unwelcome visitors to military installations. *696 The power to initiate criminal proceedings under 1382 is narrower than the base commander's broad power to exclude civilians from his facility. By its terms, the first clause of the statute only applies to persons who seek entry to a military installation for the purpose of committing unlawful acts. The second applies to any person who reenters the facility after physical removal or an order not to reenter. The limited criminal liability provided by Congress in 1382 evinces a design to protect innocent or inadvertent entries onto military lands from becoming a criminal trespass.[6] The two clauses of 1382 were originally enacted as a single sentence; if they are read together, a plausible construction becomes apparent. The statute was aimed at trespassers — civilians whom the military had the power to exclude but not to punish. The first clause authorized the punishment of a trespasser if it could be proved that he had entered "for any purpose prohibited by law or [lawful] military regulation"; the second clause made it unnecessary to prove any unlawful purpose if the trespasser "reenter[s]" after having been removed. In many circumstances, of course, a second trespass in defiance of removal or an order not to reenter may safely be presumed to be motivated by an unlawful purpose — especially when the reentry closely follows the exclusion from the base, and its circumstances are similar. When circumstances reasonably indicate to an individual that a visit to the base is permitted or even welcome, there is no "reentry" in defiance of authority as the statute here *697 presumes. Base authorities, of course, have ample power to exclude such individuals. But criminal prosecution of a person entering under these circumstances is fundamentally inconsistent with Congress' intent to excuse innocent and inadvertent intrusions onto military reservations. No rule of construction requires that we attribute to Congress an intent
Justice Stevens
1,985
16
dissenting
United States v. Albertini
https://www.courtlistener.com/opinion/111487/united-states-v-albertini/
of construction requires that we attribute to Congress an intent which is at odds with its own design and which results "in patently absurd consequences." United In fact, this Court, "in keeping with the common-law tradition and with the general injunction that `ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' has on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide." United II Adopting a starkly literal interpretation of the second clause of 1382, the Court concludes that Congress intended to impose strict liability every time an individual is "found within" a military reservation after having been "removed therefrom or ordered not to reenter." Under this construction, the circumstances of neither the removal nor the reentry are relevant to the criminal offense. Emphasizing the absence of any reference to the defendant's state of mind in the second clause, the Court rejects what it considers to be the "remarkable proposition" that a civilian removed from a base or ordered not to reenter may ever reasonably believe that he could safely return to the base. Ante, at 683. The Court's literal approach to the question of statutory construction, if applied with the frozen logic the Court purports to espouse, expands the coverage of the Act far beyond anything that Congress actually could have intended. There are many situations in which the circumstances of the removal or order not to reenter simply do not suggest to *698 the reasonable citizen that a later reentry is barred. Under the Court's interpretation of the statute, a person who was removed from Hickam in 1972 because he was intoxicated, is guilty of a federal offense if he returns to attend an open house nine years later. Even worse, it is not inconceivable that at the 4 p. m. curfew hour many persons may not yet have departed the Hickam open house. If the base commander, or someone acting under his authority, terminated the party with an address over the loudspeaker system which ended with an unambiguous order to depart within the next 30 minutes, hundreds — perhaps thousands — of civilians would have "been removed therefrom" within the literal meaning of 1382. If the statutory language is interpreted literally, every one of these civilians would act at his peril if he accepted an invitation to the open house in the following year.[7] Moreover, highways or other public easements often bisect military reservations. Cf. Respondent has informed us that a substantial portion of the main runway at Honolulu
Justice Stevens
1,985
16
dissenting
United States v. Albertini
https://www.courtlistener.com/opinion/111487/united-states-v-albertini/
that a substantial portion of the main runway at Honolulu International Airport lies inside the boundaries of Hickam Air Force Base. Brief for Respondent 8. If an individual who has been removed from Hickam is liable under 1382 whenever he is thereafter "found within" its boundaries, he risks criminal punishment every time he departs on an airline flight that may use the runway traversing the base. The use of these military lands for the limited public purposes for which they *699 have been set aside does not involve the bold defiance of authority that is foreseen by the structure of the statute and reflected in its legislative history. Surely Congress did not intend to impose criminal liability for the use of a civilian airport — even for persons who have been previously "removed" from a military base by administrative action, or ordered not to reenter. The Court prefers to rely on the Due Process Clause to limit the oppressive and absurd consequences of its literal construction. It seems wiser to presume that "the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter." United At some point, common sense must temper the excesses of statutory literalism. III The Court repeatedly emphasizes that respondent received a "bar letter" ordering him not to reenter the base. The statute, however, contains no requirement that the removal of a trespasser be documented in any way or that an order not to reenter be in writing. In 1909 Congress was concerned with trespassers who refused to obey verbal orders to depart. See n. The practice of issuing written orders not to reenter apparently arose after the enactment of the statute in order to serve an evidentiary function. The bar letter is evidence of the fact that its recipient has been removed from the base and ordered not to reenter. It is issued when prosecution for subsequent reentry is contemplated,[8] but nothing in the statute gives such a letter any *700 greater legal effect than a sentry's ejectment of a peddler or a panderer. As a matter of administration, the practice of issuing such bar letters is surely commendable, but it cannot, in my judgment, expand the coverage of the statute in the slightest. The Court also seems to attach significance to the fact that the bar letter delivered to respondent in 1972 had been precipitated by an unlawful act. I agree, of course, that Congress could not have intended the statute to apply to a reentry following an invalid
Justice Stevens
1,985
16
dissenting
United States v. Albertini
https://www.courtlistener.com/opinion/111487/united-states-v-albertini/
the statute to apply to a reentry following an invalid order of removal — even if the literal wording of the Act draws no such distinction. But a verbal order to depart simply because the curfew hour has been reached has the same legal effect as an order to depart because a crime has been committed. In either event, a reentry will violate 1382. In this case, the evidentiary significance of the 1972 removal and order not to reenter is significantly attenuated by the passage of nearly a decade from the date of the event. Every area of our laws recognizes that at some point, "even wrongdoers are entitled to assume that their sins may be forgotten." 1 (198). By limiting the effect of orders not to reenter to a period of one or two years, App. 60-62, recent military practice has recognized that the character of an individual may change dramatically over time. Cf. Fed. Rule Evid. 609(b). Indeed, until this case no reported prosecution under 1382 relied on a removal or order not to reenter of greater vintage.[9] *701 A decade-old bar letter might provide a basis for excluding the recipient from a base under appropriate circumstances. It does not, however, provide persuasive evidence that a reasonable person would believe that its proscriptive effect continued in perpetuity to pre-empt the effect of a public invitation to attend an open house at the base.[10] This is especially so when the original order was issued for a relatively minor transgression completely unrelated to the circumstances of the later intrusion. The refrain in the Court's opinion concerning bar letters that the respondent may have received from other military bases in Hawaii is baffling considering its holding that the reasonableness of the later intrusion is irrelevant. The Court's reliance on these bar letters is especially puzzling since they are not contained in the record and may well have been invalid.[11] In any case, the fact that respondent's opposition to military preparedness may have caused other base commanders to deliver bar letters to him is quite irrelevant to the question whether circumstances reasonably indicated *702 to him that his attendance at the Hickam open house was prohibited. At most, these unrelated incidents might have supported the removal of respondent from Hickam if he sought to enter, or perhaps the issuance of a fresh order barring reentry there.[12] The Court seems to regard "the effective lifetime of a bar order" as the critical issue. It concedes that the Constitution or military regulation may constrain a commanding officer's power to exclude a civilian from a
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
This case requires us to decide whether postal employees are within the "zone of interests" of the group of statutes known as the Private Express Statutes (PES), so that they may challenge the action of the United States Postal Service in suspending the operation of the PES with respect to a practice of private courier services called "international remailing." We hold that they are not. Since its establishment, the United States Postal Service has exercised a monopoly over the carriage of letters in and from the United States. The postal monopoly is codified in the PES, 18 U.S. C. 1693-1699 and 39 U.S. C. 601-606. The monopoly was created by Congress as a revenue protection measure for the Postal Service to enable it to fulfill its mission. See Regents of Univ. of It prevents private competitors from offering service on low-cost routes at prices below those of the Postal Service, while leaving the Service with high-cost routes and insufficient means to fulfill its mandate of providing uniform rates and service to patrons in all areas, including those that are remote or less populated. See J. Haldi, Postal Monopoly: An Assessment of the Private Express Statutes 9 (1974); Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering Commercial as Well as Personal Messages, 12 U. S. F. L. Rev. 57, 60, and n. 8 (1977). A provision of the PES allows the Postal Service to "suspend [the PES restrictions] upon any mail route where the public interest requires the suspension." 39 U.S. C. 601(b). In 1979, the Postal Service suspended the PES restrictions for "extremely urgent letters," thereby allowing overnight delivery of letters by private courier services. 39 CFR 320.6 ; (1979). Private courier services, including members of petitioner-intervenor Air Courier Conference of America, relied on that suspension to *520 engage in a practice called "international remailing." This entails bypassing the Postal Service and using private courier systems to deposit with foreign postal systems letters destined for foreign addresses. Believing this international remailing was a misuse of the urgent-letter suspension, the Postal Service issued a proposed modification and clarification of its regulation in order to make clear that the suspension for extremely urgent letters did not cover this practice. (1985). The comments received in response to the proposed rule were overwhelmingly negative and focused on the perceived benefits of international remailing: Lower cost, faster delivery, greater reliability, and enhanced ability of United States companies to remain competitive in the international market. Because of the vigorous opposition to the proposed rule, the Postal Service agreed to reconsider its position and
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
rule, the Postal Service agreed to reconsider its position and instituted a rulemaking "to remove the cloud" over the validity of the international remailing services. 9853 (1986). After receiving additional comments and holding a public meeting on the subject, on June 17, 1986, the Postal Service issued a proposal to suspend operation of the PES for international remailing. Additional comments were received, and after consideration of the record it had compiled, the Postal Service issued a final rule suspending the operation of the PES with respect to international remailing. Respondents, the American Postal Workers Union, AFL-CIO, and the National Association of Letter Carriers, AFL-CIO (Unions), sued in the United States District Court for the District of Columbia, challenging the international remailing regulation pursuant to the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S. C. 702. They claimed that the rulemaking record was inadequate to support a finding that the suspension of the PES for international remailing was in the public interest. Petitioner Air Courier Conference of America (ACCA) intervened. *521 On December 20, the District Court granted summary judgment in favor of the Postal Service and ACCA. American Postal Workers Union, The Unions appealed to the Court of Appeals for the District of Columbia Circuit, and that court vacated the grant of summary judgment. American Postal Workers Union, 282 U. S. App. D. C. 5, It held that the Unions satisfied the zone-of-interests requirement for APA review under and that the Postal Service's regulation was arbitrary and capricious because it relied on too narrow an interpretation of "the public interest." In determining that the Unions' interest in employment opportunities was protected by the PES, the Court of Appeals noted that the PES were reenacted as part of the Postal Reorganization Act (PRA), Stat. 719, codified at 39 U.S. C. 101 et seq. The Court of Appeals found that a "key impetus" and "principal purpose" of the PRA was "to implement various labor reforms that would improve pay, working conditions and labor-management relations for postal employees." 282 U. S. App. D. C., at -310. Reasoning that "[t]he Unions' asserted interest is embraced directly by the labor reform provisions of the PRA," and that "[t]he PES constitute the linchpin in a statutory scheme concerned with maintaining an effective, financially viable Postal Service," ib the court concluded that "[t]he interplay between the PES and the entire PRA persuades us that there is an `arguable' or `plausible' relationship between the purposes of the PES and the interests of the Union[s]." The Court of Appeals also held that "the revenue protective purposes
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
Court of Appeals also held that "the revenue protective purposes of the PES, standing alone, plausibly relate to the Unions' interest in preventing the reduction of employment opportunities," since "postal workers benefit from the PES's *522 function in ensuring a sufficient revenue base" for the Postal Service's activities. Addressing the merits of the Unions' challenge to the suspension order, the Court of Appeals held that it was arbitrary and capricious because the Postal Service had applied 601(b)'s public interest test too narrowly by considering only the benefits of the international remail rule to the small segment of the Postal Service's consumer base that engages in international commerce. We granted certiorari, and we now reverse. The United States Postal Service, nominally a respondent, argues along with ACCA that the Unions do not have standing to challenge the Postal Service's suspension of the PES for international remailing. The Postal Service argues now that Congress precluded judicial review of Postal Service action under the APA by enacting 39 U.S. C. 410(a), which the Postal Service contends provides that Chapters 5 and 7 of Title 5 do not apply to the Postal Service.[1] Chapters 5 and 7 of Title 5 are the provisions of the APA dealing with "Administrative Procedure" (Chapter 5) and "Judicial Review" (Chapter 7). The Postal Service raised this argument for the first time in its brief in opposition to the petition for writ of certiorari. It was not argued to either of the lower courts, and was not considered by either court below in deciding this case. This issue was not raised by ACCA in its petition for writ of certiorari, nor is it encompassed by the questions presented upon which we based our grant of certiorari.[2] Consequently, *523 we decline to decide whether 410(a) exempts the Postal Service from judicial review under the APA.[3] To establish standing to sue under the APA, respondents must establish that they have suffered a legal wrong because of the challenged agency action, or are adversely affected or "aggrieved by agency action within the meaning of a relevant statute." 5 U.S. C. 702. Once they have shown that they are adversely affected, i. e., have suffered an "injury in fact," see the Unions must show that they are within the zone of interests sought to be protected through the PES. ; ; Association of Data Service Organizations, Specifically, "the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
be protected by the statutory provision whose violation forms the *524 legal basis for his complaint." at 883 (citing ). The District Court found that the Unions had satisfied the injury-in-fact test because increased competition through international remailing services might have an adverse effect on employment opportunities of postal workers. This finding of injury in fact was not appealed. The question before us, then, is whether the adverse effect on the employment opportunities of postal workers resulting from the suspension is within the zone of interests encompassed by the PES—the statutes which the Unions assert the Postal Service has violated in promulgating the international remailing rule. The Court of Appeals found that the Unions had standing because "the revenue protective purposes of the PES, standing alone, plausibly relate to the Unions' interest in preventing the reduction of employment opportunities." 282 U. S. App. D. C., This view is mistaken, for it conflates the zone-of-interests test with injury in fact. In this Court gave the following example illustrating how injury in fact does not necessarily mean one is within the zone of interests to be protected by a given statute: "[T]he failure of an agency to comply with a statutory provision requiring `on the record' hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be `adversely affected within the meaning' of the statute." We must inquire, then, as to Congress' intent in enacting the PES in order to determine whether postal workers were meant to be within the zone of interests protected by those statutes. The particular language of the statutes provides no support for respondents' assertion that Congress intended *525 to protect jobs with the Postal Service.[4] In fact, the provisions of 18 U.S. C. 1696(c), allowing private conveyance of letters if done on a one-time basis or without compensation, and 39 U.S. C. 601(a), allowing letters to be carried out of the mails if certain procedures are followed, indicate that the congressional concern was not with opportunities for postal *526 workers but with the receipt of necessary revenues for the Postal Service. Nor does the history of this legislation—such as it is—indicate that the PES were intended for the benefit of postal workers. When the first statutes limiting private carriage of letters on post roads were enacted in 1792, the Post Office offered no pickup or delivery services. See C.
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
Post Office offered no pickup or delivery services. See C. Scheele, A Short History of the Mail Service 66, 91 Statutory authority to employ letter carriers was not enacted until two years later and was largely ignored until the late 1820's. The 1792 restrictions on private carriage protected the Government's capital investment in the post roads, not the jobs of as yet virtually nonexistent postal employees. In 1825 and 1827, Acts were passed prohibiting the private carriage of letters through the use of stages or other vehicles, packet boats, or other vessels, 19, ch. 64 of Act of March 3, 1825, and foot and horse posts, 3, ch. 61 of Act of March 2, 1827, Postal employees cannot have been within the zone of interests of either the 1824 or 1827 Acts; those Acts targeted transportation of mail which even then was contracted out to private carriers. See W. Fuller, The American Mail: Enlarger of the Common Life 150 (1972). Congress' consideration of the 1845 Act was the only occasion on which the postal monopoly was the subject of substantial debate. The 1845 statute, entitled "An Act to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the Post Office Department," was the result of three circumstances, none of which involved the interests of postal employees. First, the Post Office Department continued to run substantial deficits in spite of high postage rates. H. R. Rep. No. 28th Cong., 1st Sess., 2-3, 5 (1844). Second, high postal rates enabled private expresses to make substantial inroads into the domestic market for delivery of letters and the 1825 and 1827 Acts proved unsuccessful in prosecuting them. Priest, The History of the *527 Postal Monopoly in the United States, 18 J. Law & Econ. 33, 60 (1975) (citing United (No. 15,253) (Mass. 1840), and United (No. 14,421) (SDNY 1843)). Third, inauguration of the "penny post" in England quadrupled use of the mails, and it was thought that a substantial reduction in American postal rates would have the dual virtues of driving private expresses out of business and increasing mail volume of the Post Office. This, in turn, would help reduce the Post Office's deficit. Cong. Globe, 28th Cong., 2d Sess., 213 (1845) (remarks of Sens. Simmons and Breese). See also H. R. Rep. No. The legislative history of the sections of the Act limiting private carriage of letters shows a two-fold purpose. First, the Postmaster General and the States most distant from the commercial centers of
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
and the States most distant from the commercial centers of the Northeast believed that the postal monopoly was necessary to prevent users of faster private expresses from taking advantage of early market intelligence and news of international affairs that had not yet reached the general populace through the slower mails. S. Doc. No. 66, 28th Cong., 2d Sess., 3-4 (1845). Second, it was thought to be the duty of the Government to serve outlying, frontier areas, even if it meant doing so below cost. H. R. Rep. No. Thus, the revenue protection provisions were not seen as an end in themselves, nor in any sense as a means of ensuring certain levels of public employment, but rather were seen as the means to achieve national integration and to ensure that all areas of the Nation were equally served by the Postal Service. The PES enable the Postal Service to fulfill its responsibility to provide service to all communities at a uniform rate by preventing private courier services from competing selectively with the Postal Service on its most profitable routes. If competitors could serve the lower cost segment of the market, leaving the Postal Service to handle the high-cost services, the Service would lose lucrative portions of its business, *528 thereby increasing its average unit cost and requiring higher prices to all users.[5] See Report of the President's Commission on Postal Organization, Towards Postal Excellence, 94th Cong., 2d Sess., 129 (Comm. Print 1968). The postal monopoly, therefore, exists to ensure that postal services will be provided to the citizenry at large, and not to secure employment for postal workers. The Unions' claim on the merits is that the Postal Service has failed to comply with the mandate of 39 U.S. C. 601(b) that the PES be suspended only if the public interest requires. The foregoing discussion has demonstrated that the PES were not designed to protect postal employment or further postal job opportunities, but the Unions argue that the courts should look beyond the PES to the entire 1970 PRA in applying the zone-of-interests test. The Unions argue that because one of the purposes of the labor-management provisions of the PRA was to stablize labor-management relations within the Postal Service, and because the PES is the "linchpin" of the Postal Service, employment opportunities of postal workers are arguably within the zone of interests covered by the PES. The Unions rely upon our opinion in to support this contention. *529 is the most recent in a series of cases in which we have held that competitors of regulated entities have standing to
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
have held that competitors of regulated entities have standing to challenge regulations. Investment Co. ; Association of Data Service Organizations, In we said that "we are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress' overall purposes in the National Bank Act." This statement, like all others in our opinions, must be taken in the context in which it was made. In the next paragraph of the opinion, the Court pointed out that 12 U.S. C. 36, which the plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself "a limited exception to the otherwise applicable requirement of [12 U.S. C.] 81," limiting the places at which a national bank could transact business to its headquarters and any "branches" permitted by 36. Thus the zone-of-interests test was to be applied not merely in the light of 36, which was the basis of the plaintiffs' claim on the merits, but also in the light of 81, to which 36 was an exception. The situation in the present case is quite different. The only relationship between the PES, upon which the Unions rely for their claim on the merits, and the labor-management provisions of the PRA, upon which the Unions rely for their standing, is that both were included in the general codification of postal statutes embraced in the PRA. The statutory provisions enacted and reenacted in the PRA are spread over some 65 pages in the United States Code and take up an entire title of that volume. We said in that "the relevant statute [under the APA] of course, is the statute whose violation is the gravamen of the complaint." To adopt the unions' contention would require us to hold that the "relevant statute" in this case is the PRA, with all of its various provisions united only by the fact that they deal with the Postal Service. But to accept this level of generality *530 in defining the "relevant statute" could deprive the zone-of-interests test of virtually all meaning. Unlike the two sections of the National Bank Act discussed in none of the provisions of the PES have any integral relationship with the labor-management provisions of the PRA. When it enacted the PRA, Congress made no substantive changes to those portions of the PES codified in the Criminal Code, 18 U.S. C. 1693-1699; Congress readopted without change those portions of the PES codified in the Postal Service Code, 39 U.S. C. 601-606; and Congress required the Postal Service to conduct a 2-year study and
Justice Rehnquist
1,991
19
majority
Air Courier Conference of America v. American Postal Workers Union
https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/
required the Postal Service to conduct a 2-year study and reevaluation of the PES before deciding whether those laws should be modified or repealed. PRA, Pub. L. 91-375, 7, ; S. Rep. No. 91-912, p. 22 ; H. R. Rep. No. 91-04, p. 48 None of the documents constituting the PRA legislative history suggest that those concerned with postal reforms saw any connection between the PES and the provisions of the PRA dealing with labor-management relations. The Senate and House Reports simply note that the proposed bills continue existing law without change and require the Postal Service to conduct a study of the PES. The Court of Appeals referred to the PES as the "linchpin" of the Postal Service, which it may well be; but it stretches the zone-of-interests test too far to say that because of that fact those who a different part of the PRA was designed to benefit may challenge a violation of the PES. It would be a substantial extension of our holdings in Data and Investment Co. to allow the Unions in this case to leapfrog from their asserted protection under the labor-management provisions of the PRA to their claim on the merits under the PES. We decline to make that extension, and hold that the Unions do not have standing to challenge the Postal Service's suspension of the PES to permit private couriers to engage in international remailing. We therefore do not reach the *531 merits of the Unions' claim that the suspension was not in the public interest. The judgment of the Court of Appeals is Reversed. JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in the judgment.
Justice Stevens
1,979
16
dissenting
FCC v. Midwest Video Corp.
https://www.courtlistener.com/opinion/110047/fcc-v-midwest-video-corp/
In 1969, the Commission adopted a rule requiring cable television systems to originate a significant number of local programs. In United the Court upheld the Commission's authority to promulgate this "mandatory origination" rule. Thereafter, the Commission decided that less onerous rules would accomplish its purpose of "increasing the number of outlets for community self-expression and augmenting the public's choice of programs and types of services."[1] Accordingly, it adopted the access rules that the Court invalidates today.[2] *710 In my opinion the Court's holding in Midwest Video that the mandatory origination rules were within the Commission's statutory authority requires a like holding with respect to the less burdensome access rules at issue here. The Court's contrary conclusion is based on its reading of 3 (h) of the Act as denying the Commission the power to impose common-carrier obligations on broadcasters. I am persuaded that the Court has misread the statute. Section 3 (h) provides: " `Common carrier' or `carrier' means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." 47 U.S. C. 153 (h). Section 3 is the definitional section of the Act. It does not purport to grant or deny the Commission any substantive authority. Section 3 (h) makes it clear that every broadcast station is not to be deemed a common carrier, and therefore subject to common-carrier regulation under Title II of the Act, simply because it is engaged in radio broadcasting. But nothing in the words of the statute or its legislative history suggests that 3 (h) places limits on the Commission's exercise of powers otherwise within its statutory authority because *711 a lawfully imposed requirement might be termed a "common carrier obligation."[3] The Commission's understanding supports this reading of 3 (h). In past decisions interpreting FCC authority under the Communications Act, "we [have been] guided by the `venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " Columbia Broadcasting System, quoting Red Lion Broadcasting The Commission's construction of 3 (h) is clear: it has never interpreted that provision, or any other in the Communications Act, as a limitation on its authority to impose common-carrier obligations on cable systems. *712 The Commission's 1966 rules, which gave rise to this Court's
Justice Stevens
1,979
16
dissenting
FCC v. Midwest Video Corp.
https://www.courtlistener.com/opinion/110047/fcc-v-midwest-video-corp/
The Commission's 1966 rules, which gave rise to this Court's decision in United imposed just such an obligation. Under those rules, local systems were required to carry, upon request and in a specific order of priority, the signals of broadcast stations into whose viewing area they bring competing signals.[4] And its 1969 rules, according to the FCC Report and Order, reflected the Commission's view "that a multi-purpose CATV operation combining carriage of broadcast signals with program origination and common carrier services, might best exploit cable channel capacity to the advantage of the public and promote the basic purpose for which this Commission was created."[5] Finally, in adopting the rules at issue here, the Commission explicitly rejected the rationale the Court accepts today: "So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been assigned jurisdiction we do not think they can be held beyond our authority merely by denominating them as somehow `common carrier' in nature. The proper question, *713 we believe, is not whether they fall in one category or another of regulation—whether they are more akin to obligations imposed on common carriers or obligations imposed on broadcasters to operate in the public interest— but whether the rules adopted promote statutory objectives." 59 F. C. C. 2d 294, 299 (1976). In my judgment, this is the correct approach. Columbia Broadcasting System, relied upon almost exclusively by the majority, is not to the contrary. In that case, we reviewed the provisions of the Communications Act, including 3 (h), which had some bearing on the access question presented. We emphasized, as does the majority here, that "Congress has time and again rejected various legislative attempts that would have mandated a variety of forms of individual access." But we went on to conclude: "That is not to say that Congress' rejection of such proposals must be taken to mean that Congress is opposed to private rights of access under all circumstances. Rather, the point is that Congress has chosen to leave such questions with the Commission, to which it has given the flexibility to experiment with new ideas as changing conditions require."[6] The Commission here has exercised its "flexibility to experiment" in choosing to replace the mandatory origination rule upheld in Midwest Video with what it views as the less onerous local access rules at issue here. I have no reason to doubt its conclusion that these rules, like the mandatory origination rule they replace, do promote the statutory objectives of "increasing the number of outlets for community self-expression *714 and augmenting the public's choice
per_curiam
1,979
200
per_curiam
Mobay Chemical Corp. v. Costle
https://www.courtlistener.com/opinion/109963/mobay-chemical-corp-v-costle/
Appellant contends that the use of one submitter's data, filed prior to 1970, in the consideration of another person's application for registration of pesticides under 3 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as added by the Federal Environmental Pesticide Control Act of 1972, and as amended, 7 U.S. C. 136a, effects a taking for private use and without compensation in violation of the Fifth Amendment to the Constitution and that the Act is to that extent invalid. A three-judge court was convened under former 28 U.S. C. 2282 (1970 ed.) and proceeded to reject these contentions. Appellant seeks to appeal directly to this Court. Having examined the Act and the papers before us, however, we are convinced that whatever may be true with respect to data submitted after January 1, 1970, the FIFRA, as amended, does not at all address the issues of the conditions under which pre-1970 data may be used in considering another application. It neither authorizes, forbids, nor requires the existing agency practice with respect to pre-1970 data. As a legal matter, then, appellant's attack is on agency practice, *321 not on the statute. The three-judge court was thus improperly convened, William Jameson & and this Court does not have jurisdiction to entertain a direct appeal from the judgment in such case. See 28 U.S. C. 1253; The appeal is accordingly dismissed for want of jurisdiction. So ordered. MR.
Justice Stewart
1,970
18
dissenting
Phoenix v. Kolodziejski
https://www.courtlistener.com/opinion/108190/phoenix-v-kolodziejski/
If this case really involved an "election," that is, a choice by popular vote of candidates for public office under a system of representative democracy, then our frame of reference would necessarily have to be and its progeny. For, rightly or wrongly, the Court has said that in cases where public officials with legislative or other governmental power are to be elected by the people, the Constitution requires that the electoral franchise must generally reflect a regime of political suffrage based upon "one man, one vote." Recent examples of that constitutional doctrine are the Court's decisions in involving the franchise to vote for the members of a school board; and involving the apportionment of voting districts for the election of the trustees of a state junior college. Whether or not one accepts the constitutional doctrine embodied in those decisions, they are of little relevance here. For in this case nobody has claimed that the *216 members of the City Council of Phoenix, Arizona—the individual appellants here—were elected in any way other than on a one man, one vote basis, or that they do not fully and fairly represent the entire electorate of the municipality. And it was these councilmen who initiated the program for borrowing money so that the city might have a sewer system, parks and playgrounds, police and public safety buildings, a new library, and other municipal improvements. Having made that initial decision, the councilmen submitted the borrowing and construction program for final approval by those upon whom the burden of the municipal bonded indebtedness would legally fall—the property owners of the city. These property owners approved the entire program by a majority vote. Yet the Court today says the Equal Protection Clause prevents the city of Phoenix from borrowing the money to build the public improvements that the council and the property owners of the city have both approved. I cannot believe that the United States Constitution lays such a heavy hand upon the initiative and independence of Phoenix, Arizona, or any other city in our Nation. In the Court held unconstitutional a Louisiana law that permitted only property owners to vote on the question of approving bonds that were to be financed exclusively from the revenues of municipally operated public utilities. I agreed with that decision, because the State had created a wholly irrelevant voting classification. As the Court there noted: "The revenue bonds are to be paid only from the operations of the utilities; they are not financed in any way by property tax revenue. Property owners, like nonproperty owners, use the utilities and pay
Justice Stewart
1,970
18
dissenting
Phoenix v. Kolodziejski
https://www.courtlistener.com/opinion/108190/phoenix-v-kolodziejski/
Property owners, like nonproperty owners, use the utilities and pay the rates; however, the impact of the revenue *217 bond issue on them is unconnected to their status as property taxpayers. Indeed, the benefits and burdens of the bond issue fall indiscriminately on property owner and nonproperty owner alike." The case before us bears only a superficial resemblance to Cipriano, for we deal here, not with income-producing utilities that can pay for themselves, but with municipal improvements that must be paid for by the taxpayers. Under Arizona law a city's general bonded indebtedness effectively operates as a lien on all taxable real estate located within the city's borders. During the entire life of the bonds the privately owned real property in the city is burdened by the city's pledge—and statutory obligation—to use its real estate taxing power for the purpose of repaying both interest and principal under the bond obligation.[1] Whether under these circumstances Arizona could constitutionally confer upon its municipal governing bodies exclusive and absolute power *218 to incur general bonded indebtedness without limit at the expense of real property owners is a question that is not before us. For the State has chosen a different policy, reflected in both its constitutional and statutory law.[2] It has told the governing bodies of its cities that while they are free to plan and propose capital improvements, general obligation bonds cannot be validly issued to finance them without the approval of a majority of those upon whom the weight of repaying those bonds will legally fall. This is not the invidious discrimination that the Equal Protection Clause condemns, but an entirely rational public policy. I would reverse the judgment, because I cannot hold that the Constitution denies the City of Phoenix the public improvements that its Council and its taxpayers have endorsed.[3]
Justice Rehnquist
1,981
19
majority
Milwaukee v. Illinois
https://www.courtlistener.com/opinion/110468/milwaukee-v-illinois/
When this litigation was first before us we recognized the existence of a federal " law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution. Subsequent to our decision, Congress enacted the Federal Water Pollution Control Act Amendments of 1972. We granted certiorari *308 to consider the effect of this legislation on the previously recognized cause of action. I Petitioners, the city of the Sewerage Commission of the city of and the Metropolitan Sewerage Commission of the County of are municipal corporations organized under the laws of Wisconsin. Together they construct, operate, and maintain sewer facilities serving County, an area of some 420 square miles with a population of over one million people.[1] The facilities consist of a series of sewer systems and two sewage treatment plants located on the shores of Lake Michigan 25 and 39 miles from the Illinois border, respectively. The sewer systems are of both the "separated" and "combined" variety. A separated sewer system carries only sewage for treatment; a combined sewer system gathers both sewage and storm water runoff and transports them in the same conduits for treatment. On occasion, particularly after a spell of wet weather, overflows occur in the system which result in the discharge of sewage *309 directly into Lake Michigan or tributaries leading into Lake Michigan.[2] The overflows occur at discrete discharge points throughout the system. Respondent Illinois complains that these discharges, as well as the inadequate treatment of sewage at the two treatment plants, constitute a threat to the health of its citizens. Pathogens, disease-causing viruses and bacteria, are allegedly discharged into the lake with the overflows and inadequately treated sewage and then transported by lake currents to Illinois waters. Illinois also alleges that nutrients in the sewage accelerate the eutrophication, or aging, of the lake.[3] Respondent Michigan intervened on this issue only. Illinois' claim was first brought to this Court when Illinois sought leave to file a complaint under our original jurisdiction. We declined to exercise original jurisdiction because the dispute was not between two States, and Illinois had available an action in federal district court. The Court reasoned that federal law applied to the dispute, one between a sovereign State and political subdivisions of another State concerning pollution of interstate waters, but that the various laws which Congress had enacted "touching interstate waters" were "not necessarily the only federal remedies available." Illinois could appeal to federal law to abate a public nuisance in *310 interstate or navigable waters. The Court recognized, however, that: "It may happen that new federal laws
Justice Rehnquist
1,981
19
majority
Milwaukee v. Illinois
https://www.courtlistener.com/opinion/110468/milwaukee-v-illinois/
recognized, however, that: "It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal law of nuisance. But until that time comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution." On May 19, 1972, Illinois filed a complaint in the United States District Court for the Northern District of Illinois, seeking abatement, under federal law, of the public nuisance petitioners were allegedly creating by their discharges.[4] Five months later Congress, recognizing that "the Federal water pollution control program has been inadequate in every vital aspect," S. Rep. No. 92-414, p. 7 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 5 (hereinafter Leg. Hist.), passed the Federal Water Pollution Control Act Amendments of 1972, Stat. 816. The Amendments established a new system of regulation under which it is illegal for anyone to discharge pollutants into the Nation's waters except pursuant *311 to a permit. 301, 402 of the Act, 33 U.S. C. 1311, 1342 ( ed. and Supp. III). To the extent that the Environmental Protection Agency, charged with administering the Act, has promulgated regulations establishing specific effluent limitations, those limitations are incorporated as conditions of the permit. See generally Permits are issued either by the EPA or a qualifying state agency. Petitioners operated their sewer systems and discharged effluent under permits issued by the Wisconsin Department of Natural Resources (DNR), which had duly qualified under 402 (b) of the Act, 33 U.S. C. 1342 (b) ( ed. and Supp. III), as a permit-granting agency under the superintendence of the EPA. See Petitioners did not fully comply with the requirements of the permits and, as contemplated by the Act, 402 (b) (7), 33 U.S. C. 1342 (b) (7), see Wis. Stat. Ann. 147.29 (West 1974), the state agency brought an enforcement action in state court. On May 25, 1977, the state court entered a judgment requiring discharges from the treatment plants to meet the effluent limitations set forth in the permits and establishing a detailed timetable for the completion of planning and additional construction to control sewage overflows. Trial on Illinois' claim commenced on January 11, 1977. On July 29 the District Court rendered a decision finding that respondents had proved the existence of a nuisance under federal law, both in the discharge of inadequately treated sewage from petitioners' plants and in the discharge of
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treated sewage from petitioners' plants and in the discharge of untreated sewage from sewer overflows. The court ordered petitioners to eliminate all overflows and to achieve specified effluent limitations on treated sewage. App. to Pet. for Cert. F-25-F-26. A judgment order entered on November 15 specified a construction timetable for the completion of detention facilities to eliminate overflows. Separated sewer overflows are to be completely eliminated by 1986; combined *312 sewer overflows by 1989. The detention facilities to be constructed must be large enough to permit full treatment of water from any storm up to the largest storm on record for the area. at D-1. Both the aspects of the decision concerning overflows and concerning effluent limitations, with the exception of the effluent limitation for phosphorus, went considerably beyond the terms of petitioners' previously issued permits and the enforcement order of the state court. On appeal, the Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. The court ruled that the 1972 Amendments had not pre-empted the federal law of nuisance, but that "[i]n applying the federal law of nuisance in a water pollution case, a court should not ignore the Act but should look to its policies and principles for guidance." The court reversed the District Court insofar as the effluent limitations it imposed on treated sewage were more stringent than those in the permits and applicable EPA regulations. The order to eliminate all overflows, however, and the construction schedule designed to achieve this goal, were upheld.[5] II Federal courts, unlike state courts, are not general -law courts and do not possess a general power to develop and apply their own rules of decision. Erie R. ; United The enactment of a federal rule in an *313 area of national concern, and the decision whether to displace state law in doing so, is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress.[6]Erie recognized as much in ruling that a federal court could not generally apply a federal rule of decision, despite the existence of jurisdiction, in the absence of an applicable Act of Congress. When Congress has not spoken to a particular issue, however, and when there exists a "significant conflict between some federal policy or interest and the use of state law," at[7] the Court has found it necessary, in a "few and restricted" instances, to develop federal law. See, e. g., Clearfield Nothing in this process suggests that courts are better suited to develop national policy in areas governed
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are better suited to develop national policy in areas governed by federal law than they are in other areas, or that the usual and important concerns of an appropriate division of functions between the Congress and the federal judiciary are inapplicable. See (19); ; United We have always recognized that federal law is "subject to the paramount authority of Congress." New It is resorted to "[i]n absence of an applicable Act of Congress," Clearfield at and because the Court is compelled to consider federal questions "which cannot be answered from federal statutes alone," D'Oench, Duhme & (2) See also of ; United ; Federal law is a "necessary expedient," Committee for Consideration of Jones Falls Sewage and when Congress addresses a question previously governed by a decision rested on federal law the need for such an unusual exercise of law-making by federal courts disappears. This was pointedly recognized in 406 U.S., and in the lower court decision extensively relied upon in that case, (quoted in n. 9). In for example, the Court declined to apply the federal -law doctrine of equitable apportionment it had developed in dealing with interstate water disputes because Congress, in the view of a majority, had addressed the question: "It is true that the Court has used the doctrine of equitable apportionment to decide river controversies between States. But in those cases Congress had not made any statutory apportionment. In this case, we have decided that Congress has provided its own method for allocating *315 among the Lower Basin States the mainstream water to which they are entitled under the Compact. Where Congress has so exercised its constitutional power over waters, courts have no power to substitute their own notions of an `equitable apportionment' for the apportionment chosen by Congress." In Mobil Oil (19), the Court refused to provide damages for "loss of society" under the general maritime law when Congress had not provided such damages in the Death on the High Seas Act: "We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. The Act does not address every issue of wrongful-death law, but when it does speak directly to a question, the courts are not free to `supplement' Congress' answer so thoroughly that the Act becomes meaningless." Thus the question was whether the legislative scheme "spoke directly to a question"—in that case the question of
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"spoke directly to a question"—in that case the question of damages— not whether Congress had affirmatively proscribed the use of federal law. Our "commitment to the separation of powers is too fundamental" to continue to rely on federal law "by judicially decreeing what accords with ` sense and the public weal'" when Congress has addressed the problem.[8] *316 Contrary to the suggestions of respondents, the appropriate analysis in determining if federal statutory law governs a question previously the subject of federal law is not the same as that employed in deciding if federal law pre-empts state law. In considering the latter question "`we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" (quoting (7)). While we have not hesitated to find pre-emption of state law, whether express or implied, when Congress has so indicated, see 4 U.S. 151, (19), or when enforcement of state regulations would impair "federal superintendence of the field," Florida Lime & Avocado Growers, our analysis has included "due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy." San Diego Building Trades 9 U.S. 236, Such concerns are not implicated in the same fashion when the question is whether federal statutory * or federal law governs, and accordingly the same sort of evidence of a clear and manifest purpose is not required. Indeed, as noted, in cases such as the present "we start with the assumption" that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law.[9] III We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The 1972 Amendments to the Federal Water Pollution Control Act were not merely another law "touching interstate waters" of the sort surveyed in -103, and found inadequate to supplant federal law. Rather, the Amendments were viewed by Congress as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in that case. 1 Leg. Hist. 0-1 (remarks of Chairman Blatnik of the House Committee which drafted the House version of the Amendments); at
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Committee which drafted the House version of the Amendments); at 9-360 See S. Rep. No. 92-414, p. 95 2 Leg. Hist. 1511; ; see also EPA *318 v. State Water Resources Control -203.[10] Congress' intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge[11] is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The "major purpose" of the Amendments was "to establish a comprehensive long-range policy for the elimination of water pollution." S. Rep. No. 92-414, at 95, 2 Leg. Hist. 1511 (emphasis supplied). No Congressman's remarks on the legislation were complete without reference to the "comprehensive" nature of the Amendments. A House sponsor described the bill as "the most comprehensive and far-reaching water pollution bill we have ever drafted," 1 Leg. Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the responsible Committee in the Senate, stated: "It is perhaps the most comprehensive legislation ever developed in its field. It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment." 2[12] This Court was * obviously correct when it described the 1972 Amendments as establishing "a comprehensive program for controlling and abating water pollution." 420 U.S.[13] The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal law. See 441 F. 2d, at[14] Turning to the particular claims involved in this case, the action of Congress in supplanting the federal law is perhaps clearest when the question of effluent limitations for discharges from the two treatment plants is considered. The duly issued permits under which the city Commission discharges treated sewage from the Jones Island and South Shore treatment plants incorporate, as required by the Act, see 402 (b) (1), 33 U.S. C. 1342 (b) (1) ( ed. and Supp. *320 III), the specific effluent limitations established by EPA regulations pursuant to 301 of the Act, 33 U.S. C. 1311 ( ed. and Supp. III). App. 1-394, 395-424; see 40 CFR 133.102 There is thus no question that the problem of effluent limitations has been thoroughly addressed through the administrative scheme established by Congress, as contemplated by Congress. This being so there is no basis for a federal court to impose more stringent limitations than those imposed under the regulatory regime by reference to federal law, as
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under the regulatory regime by reference to federal law, as the District Court did in this case. The Court of Appeals, we believe, also erred in stating: "Neither the minimum effluent limitations prescribed by EPA pursuant to the provisions of the Act nor the effluent limitations imposed by the Wisconsin agency under the National Pollutant Discharge Elimination System limit a federal court's authority to require compliance with more stringent limitations under the federal law." Federal courts lack authority to impose more stringent effluent limitations under federal law than those imposed by the agency charged by Congress with administering this comprehensive scheme. The overflows do not present a different case. They are point source discharges and, under the Act, are prohibited unless subject to a duly issued permit. As with the discharge of treated sewage, the overflows, through the permit procedure of the Act, are referred to expert administrative agencies for control. All three of the permits issued to petitioners explicitly address the problem of overflows. The Jones Island and South Shore permits, in addition to covering discharges from the treatment plants, also cover overflows from various lines leading to the plants. As issued on December 24, 1974, these permits require the city Commission "to initiate a program leading to the elimination or control of all discharge overflow and/or bypass points in the [Jones Island or South *321 Shore, respectively] Collector System to assure attainment of all applicable Water Quality Standards." App. 3-9, 416. The specific discharge points are identified. The Commission was required to submit a detailed plan to DNR designed to achieve these objectives, including alternative engineering solutions and cost estimates, file a report on an attached form for all overflows that do occur, install monitoring devices on selected overflows discharge points, and file more detailed quarterly reports on the overflows from those points. The Commission was also required to complete "facilities planning" for the combined sewer area. "The facilities planning elements include a feasibility study, cost-effectiveness analysis and environmental assessment for elimination or control of the discharges from the combined sewers." Quarterly progress reports on this planning are required. at 9. A permit issued to the city on December 18, 1974, covers discharges "from sanitary sewer crossovers, combined sewer crossovers and combined sewer overflows." Again the discharge points are specifically identified. As to separated sewers, the city "is required to initiate a program leading to the elimination of the sanitary sewer crossovers (gravity) and the electrically operated relief pumps" A detailed plan to achieve this objective must be submitted, again with alternative engineering solutions and cost estimates, any
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submitted, again with alternative engineering solutions and cost estimates, any overflows must be reported to DNR on a specified form, and monitoring devices are required to be installed on selected points to provide more detailed quarterly reports. As to the combined sewers, the city "is required to initiate a program leading to the attainment of control of overflows from the city's combined sewer system" The city is required to cooperate with and assist the city Commission in facilities planning for combined sewers, see this page, submit quarterly progress reports to DNR, file reports on all discharges, and install monitoring devices on selected discharge points to provide more detailed quarterly *322 reports "until the discharges are eliminated or controlled." App. 444.[15] The enforcement action brought by the DNR in state court resulted in a judgment requiring "[e]limination of any bypassing or overflowing which occurs within the sewerage systems under dry weather by not later than July 1, 1982." Wet weather overflows from separated sewers were to be subject to a coordinated effort by the Commissions resulting in correction of the problem by July 1, 1986, pursuant to a plan submitted to the DNR. at -471. As to the combined sewer overflows, the Commissions were required to accomplish an abatement project, with design work completed by July 1, 1981, and construction by July 1, 1993. Annual progress reports were required to be submitted to the DNR. It is quite clear from the foregoing that the state agency *323 duly authorized by the EPA to issue discharge permits under the Act has addressed the problem of overflows from petitioners' sewer system. The agency imposed the conditions it considered best suited to further the goals of the Act, and provided for detailed progress reports so that it could continually monitor the situation. Enforcement action considered appropriate by the state agency was brought, as contemplated by the Act, again specifically addressed to the overflow problem. There is no "interstice" here to be filled by federal law: overflows are covered by the Act and have been addressed by the regulatory regime established by the Act. Although a federal court may disagree with the regulatory approach taken by the agency with responsibility for issuing permits under the Act, such disagreement alone is no basis for the creation of federal law.[16] Respondents strenuously argue that federal law continues to be available, stressing that neither in the permits nor the enforcement order are there any effluent limitations on overflows. This argument, we think, is something of a red herring. The difference in treatment between overflows and treated effluent by
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Milwaukee v. Illinois
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The difference in treatment between overflows and treated effluent by the agencies is due to differences in the nature of the problems, not the extent to which the problems have been addressed.[17] The relevant question with overflow discharges is not, as with discharges of treated sewage, what concentration of various pollutants will be permitted. Rather the question is what degree of control will be required in *324 preventing overflows and ensuring that the sewage undergoes treatment. This question is answered by construction plans designed to accommodate a certain amount of sewage that would otherwise be discharged on overflow occasions. The EPA has not promulgated regulations mandating specific control guidelines because of a recognition that the problem is "site specific." See, e. g., EPA Program Requirements Memorandum PRM No. 75-34 : "The costs and benefits of control of various portions of pollution due to combined sewer overflows and bypasses vary greatly with the characteristics of the sewer and treatment system, the duration, intensity, frequency, and aerial extent of precipitation, the type and extent of development in the service area, and the characteristics, uses and water quality standards of the receiving waters. Decisions on grants for control of combined sewer overflows, therefore, must be made on a case-by-case basis after detailed planning at the local level." See also EPA, Report to Congress on Control of Combined Sewer Overflow in the United States 7-1, 7-13 (MCD-50, 19). Decision is made on a case-by-case basis, through the permit procedure, as was done here. Demanding specific regulations of general applicability before concluding that Congress has addressed the problem to the exclusion of federal law asks the wrong question. The question is whether the field has been occupied, not whether it has been occupied in a particular manner.[18] *325 The invocation of federal law by the District Court and the Court of Appeals in the face of congressional legislation supplanting it is peculiarly inappropriate in areas as complex as water pollution control. As the District Court noted: "It is well known to all of us that the arcane subject matter of some of the expert testimony in this case was sometimes over the heads of all of us to one height or another. I would certainly be less than candid if I did not acknowledge that my grasp of some of the testimony was less complete than I would like it to be" App. to Pet. for Cert. F-4. Not only are the technical problems difficult—doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise— but the general area
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administrative agencies possessing the necessary expertise— but the general area is particularly unsuited to the approach inevitable under a regime of federal law. Congress criticized past approaches to water pollution control as being "sporadic" and "ad hoc," S. Rep. No. 92-414, p. 95 2 Leg. Hist. 1511, apt characterizations of any judicial approach applying federal law, see Wilburn Boat It is also significant that Congress addressed in the 1972 Amendments one of the major concerns underlying the recognition of federal law in We were concerned in that case that Illinois did not have any forum in which to protect its interests unless federal law were created. See 107. In the 1972 *326 Amendments Congress provided ample opportunity for a State affected by decisions of a neighboring State's permit-granting agency to seek redress. Under 402 (b) (3), 33 U.S. C. 1342 (b) (3), a state permit-granting agency must ensure that any State whose waters may be affected by the issuance of a permit receives notice of the permit application and the opportunity to participate in a public hearing. Wisconsin law accordingly guarantees such notice and hearing, see Wis. Stat. Ann. 147.11, 147.13 (West Supp. 1980-1981). Respondents received notice of each of the permits involved here, and public hearings were held, but they did not participate in them in any way. Section 402 (b) (5), 33 U.S. C. 1342 (b) (5), provides that state permit-granting agencies must ensure that affected States have an opportunity to submit written recommendations concerning the permit applications to the issuing State and the EPA, and both the affected State and the EPA must receive notice and a statement of reasons if any part of the recommendations of the affected State are not accepted. Again respondents did not avail themselves of this statutory opportunity. Under 402 (d) (2) (A), 33 U.S. C. 1342 (d) (2) (A) ( ed., Supp. III), the EPA may veto any permit issued by a State when waters of another State may be affected. Respondents did not request such action. Under 402 (d) (4) of the Act, 33 U.S. C. 1342 (d) (4) ( ed., Supp. III), added in 1977, the EPA may issue permits if a stalemate between an issuing and objecting State develops. The basic grievance of respondents is that the permits issued to petitioners pursuant to the Act do not impose stringent enough controls on petitioners' discharges. The statutory scheme established by Congress provides a forum for the pursuit of such claims before expert agencies by means of the permit-granting process. It would be quite inconsistent with this scheme if federal
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It would be quite inconsistent with this scheme if federal courts were in effect to "write their own ticket" under the guise of federal law after permits have already been issued and permittees have been planning and operating in reliance on them. *327 Respondents argue that congressional intent to preserve the federal -law remedy recognized in is evident in 510 and 505 (e) of the statute, 33 U.S. C. 10, 1365 (e).[19] Section 510 provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act.[20] It is one thing, however, *328 to say that States may adopt more stringent limitations through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to in-state dischargers. It is quite another to say that the States may call upon federal courts to employ federal law to establish more stringent standards applicable to out-of-state dischargers. Any standards established under federal law are federal standards, and so the authority of States to impose more stringent standards under 510 would not seem relevant. Section 510 clearly contemplates state authority to establish more stringent pollution limitations; nothing in it, however, suggests that this was to be done by federal-court actions premised on federal law. Subsection 505 (e) provides: "Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)" (emphasis supplied). Respondents argue that this evinces an intent to preserve the federal law of nuisance. We, however, are inclined to view the quoted provision as meaning what it says: that nothing in 505, the citizen-suit provision, should be read as limiting any other remedies which might exist. Subsection 505 (e) is virtually identical to subsections in the citizen-suit provisions of several environmental statutes.[21]*329 The subsection is language accompanying citizen-suit provisions and we think that it means only that the provision of such suit does not revoke other remedies. It most assuredly cannot be read to mean that the Act as a whole does not supplant formerly available federal -law actions but only that the particular section authorizing citizen suits does not do so. No one, however, maintains that the citizen-suit provision pre-empts federal law. We are thus not persuaded that 505 (e) aids respondents in this case, even indulging the unlikely assumption that the reference to " law"
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indulging the unlikely assumption that the reference to " law" in 505 (e) includes the limited federal law as opposed to the more routine state law. See Committee for Consideration of Jones Falls Sewage 539 F. 2d, at 1009, n. 9.[22] The dissent considers "particularly revealing," post, at 343, a colloquy involving Senators Griffin, Muskie, and Hart, concerning the pendency of an action by the EPA against Reserve Mining Co. Senator Griffin expressed concern that "one provision in the conference agreement might adversely *330 affect a number of pending lawsuits brought under the Refuse Act of 1899," including the Reserve Mining litigation. 1 Leg. Hist. 190. The provision which concerned Senator Griffin, enacted as 402 (k), 33 U.S. C. 1342 (k), provides, in pertinent part: "Until December 31, 1974, in any case where a permit for discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of (1) section 301, 306, or 402 of this Act, or (2) section 13 of the Act of March 3, 1899, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application." Senator Griffin was concerned about the relation between this provision and 4 (a) of the bill, which provided that "[n]o suit, action or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of the Act shall abate by reason of the taking effect of the amendment made by section 2 of this Act." Senator Griffin stated that "when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against pollutors violating the Refuse Act of 1899." Senator Muskie responded to Senator Griffin's concerns by quoting 4 (a) and stating that "[w]ithout any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress." 1 Leg. Hist. 193. Later Senator Hart stated: "It is *331 my understanding, after the explanation of the Senator from Maine, that the suit now pending against the Reserve Mining Co., under the
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suit now pending against the Reserve Mining Co., under the Refuse Act of 1899 will in no way be affected nor will any of the other counts under the existing Federal Water Pollution Control Act or other law."[23] When Senator Muskie's and Hart's remarks are viewed in this context it is clear that they do not bear on the issue now before the Court. In the first place, although there was a federal -law claim in the Reserve Mining litigation, Senator Griffin focused on the Refuse Act of 1899— not federal law. Senator Muskie, with his reference to "other acts of Congress," rather clearly was not discussing federal law. Most importantly, however, Senator Muskie based his response to Senator Griffin—that the Reserve Mining suit would not be affected—on a specific section of the bill, 4 (a), which is not applicable to suits other than those brought by or against the Federal Government and pending when the Amendments were enacted. Senator Hart based his response on the explanation given by Senator Muskie. Even if we assumed that the legislators were focusing on the federal -law aspects of the Reserve Mining litigation (and we do not think they were), Senators Muskie and Hart informed Senator Griffin that the Reserve Mining suit was not affected because of 4 (a), and not at all because the Act did not displace the federal law of nuisance. Senator Griffin's question focused on 4 (a); understandably, so did the assurances he received. Nothing *332 about the colloquy suggests any intent concerning the continued validity of federal law. The issue simply did not come up because Senator Griffin's concerns were fully answered by a particular section not applicable in the case before us.[24] We therefore conclude that no federal -law remedy was available to respondents in this case. The judgment of the Court of Appeals is therefore vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
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Franchise Tax Bd. of Cal. v. Hyatt
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We grated certiorari to resolve whether the Nevada Supreme Court's refusal to exted full faith ad credit to Califoria's statute immuizig its tax collectio agecy from suit violates Article IV, 1, of the Costitutio. We coclude it does ot, ad we therefore affirm the judgmet of the Nevada Supreme Court. I Respodet Gilbert P. Hyatt (hereiafter respodet) filed a "part-year" residet icome tax retur i Califoria for 1991. App. to Pet. for Cert. 54. I the retur, respodet represeted that as of October 1, 1991, he had ceased to be a Califoria residet ad had become a residet of Nevada. I 1993, petitioer Califoria Frachise Tax Board (CFTB) commeced a audit to determie whether respodet had uderpaid state icome taxes. The audit focused o *491 respodet's claim that he had chaged residecy shortly before receivig substatial licesig fees for certai pateted ivetios related to computer techology. At the coclusio of its audit, CFTB determied that respodet was a Califoria residet util April 3, 1992, ad accordigly issued otices of proposed assessmets for icome taxes for 1991 ad 1992 ad imposed substatial civil fraud pealties. Respodet protested the proposed assessmets ad pealties i Califoria through CFTB's admiistrative process. See Cal. Rev. & Tax. Code A. 19041, 19044-19046 (West 1994). O Jauary 6, 1998, with the admiistrative protest ogoig i Califoria, respodet filed a lawsuit agaist CFTB i Nevada i Clark Couty District Court. Respodet alleges that CFTB directed "umerous ad cotiuous cotacts at Nevada" ad committed several torts durig the course of the audit, icludig ivasio of privacy, outrageous coduct, abuse of process, fraud, ad egliget misrepresetatio. App. to Pet. for Cert. 51-52, 54. Respodet seeks puitive ad compesatory damages. He also sought a declaratory judgmet "cofirm[ig] [his] status as a Nevada residet effective as of September 26, 1991," but the District Court dismissed the claim for lack of subject matter jurisdictio o April 1999, App. 93-95. Durig the discovery phase of the Nevada lawsuit, CFTB filed a petitio i the Nevada Supreme Court for a writ of madamus, or i the alterative, for a writ of prohibitio, challegig certai of the District Court's discovery orders. While that petitio was pedig, CFTB filed a motio i the District Court for summary judgmet or, i the alterative, for dismissal for lack of jurisdictio. CFTB argued that the District Court lacked subject matter jurisdictio because priciples of sovereig immuity, full faith ad credit, choice of law, comity, ad admiistrative exhaustio all required that the District Court apply Califoria law, uder which: *492 "Neither a public etity or a public employee is liable for
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Franchise Tax Bd. of Cal. v. Hyatt
https://www.courtlistener.com/opinion/127914/franchise-tax-bd-of-cal-v-hyatt/
a public etity or a public employee is liable for a ijury caused by: "(a) Istitutig ay judicial or admiistrative proceedig or actio for or icidetal to the assessmet or collectio of a tax [or] "(b) A act or omissio i the iterpretatio or applicatio of ay law relatig to a tax." Cal. Govt. Code A. 860.2 (West 1995). The District Court deied CFTB's motio for summary judgmet or dismissal, promptig CFTB to file a secod petitio i the Nevada Supreme Court. This petitio sought a writ of madamus orderig the dismissal of the case, or i the alterative, a writ of prohibitio ad madamus limitig the scope of the suit to claims arisig out of coduct that occurred i Nevada. O Jue 13, 2001, the Nevada Supreme Court grated CFTB's secod petitio, dismissed the first petitio as moot, ad ordered the District Court to eter summary judgmet i favor of CFTB. App. to Pet. for Cert. 38-43. O April 4, 2002, however, the court grated respodet's petitio for rehearig, vacated its prior rulig, grated CFTB's secod petitio i part, ad deied it i part. The court held that the District Court "should have declied to exercise its jurisdictio over the uderlyig egligece claim uder comity priciples" but that the itetioal tort claims could proceed to trial. The Nevada Supreme Court oted that both Nevada ad Califoria have geerally waived their sovereig immuity from suit i state court ad "have exteded the waivers to their state agecies or public employees except whe state statutes expressly provide immuity." at 9-10 (citig Nev. Rev. Stat. 41.031 (1996); Cal. Cost., Art. 3, 5; ad Cal. Govt. Code A. 820 (West 1995)). Whereas Nevada has ot coferred immuity o its state agecies for itetioal torts committed withi the course ad scope of * employmet, the court ackowledged that "Califoria has expressly provided [CFTB] with complete immuity." App. to Pet. for Cert. 10 (citig Cal. Govt. Code A. 860.2 (West 1995) ad ). To determie which State's law should apply, the court applied priciples of comity. Though the Nevada Supreme Court recogized the doctrie of comity as "a accommodatio policy, uder which the courts of oe state volutarily give effect to the laws ad judicial decisios of aother state out of deferece ad respect, to promote harmoious iterstate relatios," the court also recogized its duty to determie whether the applicatio of Califoria law "would cotravee Nevada's policies or iterests," givig "due regard to the duties, obligatios, rights ad coveiece of Nevada's citizes." App. to Pet. for Cert. 11. "A ivestigatio is geerally cosidered to be
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for Cert. 11. "A ivestigatio is geerally cosidered to be a discretioary fuctio," the court observed, "ad Nevada provides its [ow] agecies with immuity for the performace of a discretioary fuctio eve if the discretio is abused." "[A]ffordig [CFTB] statutory immuity for egliget acts," the court therefore cocluded, "does ot cotravee ay Nevada iterest i this case." The court accordigly held that "the district court should have declied to exercise its jurisdictio" over respodet's egligece claim uder priciples of comity. With respect to the itetioal torts, however, the court held that "affordig [CFTB] statutory immuity does cotravee Nevada's policies ad iterests i this case." Because Nevada "does ot allow its agecies to claim immuity for discretioary acts take i bad faith, or for itetioal torts committed i the course ad scope of employmet," the court held that "Nevada's iterest i protectig its citizes from ijurious itetioal torts ad bad faith acts committed by sister states' govermet employees" should be accorded *494 greater weight "tha Califoria's policy favorig complete immuity for its taxatio agecy." -13. We grated certiorari to resolve whether Article IV, 1, of the Costitutio requires Nevada to give full faith ad credit to Califoria's statute providig its tax agecy with immuity from suit, ad we ow affirm. II The Costitutio's Full Faith ad Credit Clause provides: "Full Faith ad Credit shall be give i each State to the public Acts, Records, ad judicial Proceedigs of every other State. Ad the Cogress may by geeral Laws prescribe the Maer i which such Acts, Records ad Proceedigs shall be proved, ad the Effect thereof." Art. IV, 1. As we have explaied, "[o]ur precedet differetiates the credit owed to laws (legislative measures ad commo law) ad to judgmets." Whereas the full faith ad credit commad "is exactig" with respect to "[a] fial judgmet redered by a court with adjudicatory authority over the subject matter ad persos govered by the judgmet," it is less demadig with respect to choice of laws. We have held that the Full Faith ad Credit Clause does ot compel "`a state to substitute the statutes of other states for its ow statutes dealig with a subject matter cocerig which it is competet to legislate.'" Su Oil The State of Nevada is udoubtedly "competet to legislate" with respect to the subject matter of the alleged itetioal torts here, which, it is claimed, have ijured oe of its citizes withi its borders. "`[F]or a State's substative law to be selected i a costitutioally permissible maer, that State must have a sigificat cotact or sigificat aggregatio of cotacts, creatig state
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a sigificat cotact or sigificat aggregatio of cotacts, creatig state iterests, such that choice of its law is either arbitrary or fudametally ufair.'" *495 Phillips Petroleum ; see -823. Such cotacts are maifest i this case: the plaitiff claims to have suffered ijury i Nevada while a residet there; ad it is udisputed that at least some of the coduct alleged to be tortious occurred i Nevada, Brief for Petitioer 33-34, See, e. g., ; Pacific Employers Is. CFTB does ot coted otherwise. Istead, CFTB urges this Court to adopt a "ew rule" madatig that a state court exted full faith ad credit to a sister State's statutorily recaptured sovereig immuity from suit whe a refusal to do so would "iterfer[e] with a State's capacity to fulfill its ow sovereig resposibilities." Brief for Petitioer 13 (iteral quotatio marks omitted). We have, i the past, appraised ad balaced state iterests whe ivokig the Full Faith ad Credit Clause to resolve coflicts betwee overlappig laws of coordiate States. See Bradford Elec. Light (holdig that the Costitutio required a federal court sittig i New Hampshire to apply a Vermot workers' compesatio statute i a tort suit brought by the admiistrator of a Vermot worker killed i New Hampshire). This balacig approach quickly proved usatisfactory. Compare Alaska Packers Ass. v. Idustrial Accidet Comm' of Cal., (holdig that a forum State, which was the place of hirig but ot of a claimat's domicile, could apply its ow law to compesate for a accidet i aother State, because "[]o persuasive reaso" was show for requirig applicatio of the law of the State where the *496 accidet occurred), with Pacific Employers Is. (holdig that the State where a accidet occurred could apply its ow workers' compesatio law ad eed ot give full faith ad credit to that of the State of hirig ad domicile of the employer ad employee). As Justice Robert H. Jackso, recoutig these cases, aptly observed, "it [is] difficult to poit to ay field i which the Court has more completely demostrated or more cadidly cofessed the lack of guidig stadards of a legal character tha i tryig to determie what choice of law is required by the Costitutio." Full Faith ad Credit — The Lawyer's Clause of the Costitutio, I light of this experiece, we abadoed the balacig-of-iterests approach to coflicts of law uder the Full Faith ad Credit Clause. Allstate Is. 10 ; at 322, 6 (STEVENS, J., cocurrig i judgmet); at 339, 6 (Powell, J., dissetig). We have recogized, istead, that "it is frequetly the case uder the Full Faith ad
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"it is frequetly the case uder the Full Faith ad Credit Clause that a court ca lawfully apply either the law of oe State or the cotrary law of aother." Su Oil 27. We thus have held that a State eed ot "substitute the statutes of other states for its ow statutes dealig with a subject matter cocerig which it is competet to legislate." Pacific Employers Is. at ; see at ; Su Oil 22; Phillips Petroleum at -819. Ackowledgig this shift, CFTB coteds that this case demostrates the eed for a ew rule uder the Full Faith ad Credit Clause that will protect "core sovereigty" iterests as expressed i state statutes delieatig the cotours of the State's immuity from suit. Brief for Petitioer 13. We disagree. We have cofroted the questio whether the Full Faith ad Credit Clause requires a forum State to *497 recogize a sister State's legislatively recaptured immuity oce before. I a employee of the Uiversity of Nevada was ivolved i a automobile accidet with Califoria residets, who filed suit i Califoria ad amed Nevada as a defedat. The Califoria courts refused to apply a Nevada statute that capped damages i tort suits agaist the State o the groud that "to surreder jurisdictio or to limit respodets' recovery to the $25,000 maximum of the Nevada statute would be oboxious to its statutorily based policies of jurisdictio over oresidet motorists ad full recovery." We affirmed, holdig, first, that the Costitutio does ot cofer sovereig immuity o States i the courts of sister States. Petitioer does ot ask us to reexamie that rulig, ad we therefore declie the ivitatio of petitioer's amici States, see Brief for State of Florida et al. as Amici Curiae 2, to do so. See this Court's Rule 14.1(a); Mazer v. Stei, 206, 5 ("We do ot reach for costitutioal questios ot raised by the parties"). The questio preseted here istead implicates Hall's secod holdig: that the Full Faith ad Credit Clause did ot require Califoria to apply Nevada's sovereig immuity statutes where such applicatio would violate Califoria's ow legitimate public 440 U.S., The Court observed i a footote: "Califoria's exercise of jurisdictio i this case poses o substatial threat to our costitutioal system of cooperative federalism. Suits ivolvig traffic accidets occurrig outside of Nevada could hardly iterfere with Nevada's capacity to fulfill its ow sovereig resposibilities. We have o occasio, i this case, to cosider whether differet state policies, either of Califoria or of Nevada, might require a differet aalysis or a differet result." 24. *498 CFTB asserts that a aalysis of this
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result." 24. *498 CFTB asserts that a aalysis of this lawsuit's effects should lead to a differet result: that the Full Faith ad Credit Clause requires Nevada to apply Califoria's immuity statute to avoid iterferece with Califoria's "sovereig resposibility" of eforcig its icome tax laws. Brief for Petitioer 13. Our past experiece with appraisig ad balacig state iterests uder the Full Faith ad Credit Clause cousels agaist adoptig CFTB's proposed ew rule. Havig recogized, i Hall, that a suit agaist a State i a sister State's court "ecessarily implicates the power ad authority" of both sovereigs, 440 U.S., at 4, the questio of which sovereig iterest should be deemed more weighty is ot oe that ca be easily aswered. Yet petitioer's rule would elevate Califoria's sovereigty iterests above those of Nevada, were we to deem this lawsuit a iterferece with Califoria's "core sovereig resposibilities." We rejected as "usoud i priciple ad uworkable i practice" a rule of state immuity from federal regulatio uder the Teth Amedmet that tured o whether a particular state govermet fuctio was "itegral" or "traditioal." Garcia v. Sa Atoio Metropolita Trasit Authority, CFTB has coviced us of either the relative soudess or the relative practicality of adoptig a similar distictio here. Eve were we iclied to embark o a course of balacig States' competig sovereig iterests to resolve coflicts of laws uder the Full Faith ad Credit Clause, this case would ot preset the occasio to do so. There is o pricipled distictio betwee Nevada's iterests i tort claims arisig out of its uiversity employee's automobile accidet, at issue i Hall, ad Califoria's iterests i the tort claims here arisig out of its tax collectio agecy's residecy audit. To be sure, the power to promulgate ad eforce icome tax laws is a essetial attribute of sovereigty. See Frachise Tax Bd. of *499 )). But the uiversity employee's educatioal missio i Hall might also be so described. Cf. Brow v. Board of Educatio, ("[E]ducatio is perhaps the most importat fuctio of state ad local govermets"). If we were to compare the degree to which the allegedly tortious acts here ad i Hall are related to a core sovereig fuctio, we would be left to poder the relatioship betwee a automobile accidet ad educatig, o oe had, ad the itrusios alleged here ad collectig taxes, o the other. We discer o costitutioally sigificat distictio betwee these relatioships. To the extet CFTB complais of the burdes ad expese of out-of-state litigatio, ad the diversio of state resources away from the performace of importat state fuctios, those burdes do ot
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Washington v. Glucksberg
https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/
[*][†] Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms. The Court frames the issue in Washington v. Glucksberg as whether the Due Process Clause of the Constitution protects a "right to commit suicide which itself includes a right to assistance in doing so," ante, at 723, and concludes that our Nation's history, legal traditions, and practices do not support the existence of such a right. I join the Court's opinions because I agree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ("The Washington statute at issue in this case prohibits `aid[ing] another person to attempt suicide,'. and, thus, the question before us is whether the `liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so"). The parties and amici agree that in these States a patient who is *737 suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. See ; Brief for Petitioners in No. 95-1858, p. 15, n. 9; Brief for Respondents in No. 95-1858, p. 15. In this light, even assuming that we would recognize such an interest, I agree that the State's interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide. Ante, at 731-733; post, at 77 (Stevens, J., concurring in judgments); post, at 782-787 (Souter, J., concurring in judgment). Every one of us at some point may be affected by our own or a family member's terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might
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suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. Ante, at 716-718; see post, at 785-788 (Souter, J., concurring in judgment). In such circumstances, "the challenging task of crafting appropriate procedures for safeguarding liberty interests is entrusted to the `laboratory' of the States in the first instance." ). In sum, there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that *738 dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient's request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here. Justice Stevens, concurring in the judgments.[*] The Court ends its opinion with the important observation that our holding today is fully consistent with a continuation of the vigorous debate about the "morality, legality, and practicality of physician-assisted suicide" in a democratic society. Ante, at 735. I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice. I The morality, legality, and practicality of capital punishment have been the subject of debate for many years. In 1976, this Court upheld the constitutionality of the practice in cases coming to us from Georgia,[1] Florida,[2] and Texas.[3] In those cases we concluded that a State does have the power to place a lesser value on some lives than on others; there is no absolute requirement that a State treat all human life as having an equal right to preservation. Because the state legislatures had sufficiently narrowed the category of lives that the State could terminate, and had enacted special procedures to ensure that the defendant belonged in that limited category, we concluded that the statutes were not unconstitutional on their face. In later cases coming to us from each *739 of those States, however, we found that some applications of the statutes were unconstitutional.[] Today, the Court decides that Washington's statute prohibiting assisted suicide is not invalid "on its face," that is to say, in all or most cases in which it might be applied.[5] That holding, however, does not
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which it might be applied.[5] That holding, however, does not foreclose the possibility that some applications of the statute might well be inval As originally filed, Washington v. Glucksberg presented a challenge to the Washington statute on its face and as it applied to three terminally ill, mentally competent patients and to four physicians who treat terminally ill patients. After the District Court issued its opinion holding that the statute placed an undue burden on the right to commit physicianassisted suicide, see Compassion in the three patients died. Although the Court of Appeals considered the constitutionality of the statute "as applied to the prescription of life-ending medication for use by terminally ill, competent adult patients who wish to hasten their deaths," Compassion in the court did not have before it any individual plaintiff seeking to hasten her death or any doctor who was threatened with prosecution for assisting in the suicide of a particular patient; its analysis and eventual holding that the statute was unconstitutional was not limited to a particular set of plaintiffs before it. The appropriate standard to be applied in cases making facial challenges to state statutes has been the subject of debate within this Court. See Upholding the validity of the federal Bail Reform Act of 198, the Court stated in United that a "facial challenge to a legislative Act is, of course, the most *70 difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be val"[6] I do not believe the Court has ever actually applied such a strict standard,[7] even in Salerno itself, and the Court does not appear to apply Salerno here. Nevertheless, the Court does conceive of respondents' claim as a facial challenge—addressing not the application of the statute to a particular set of plaintiffs before it, but the constitutionality of the statute's categorical prohibition against "aid[ing] another person to attempt suicide." Ante, at 723 (internal quotation marks omitted) (citing Wash. Rev. Code 9A.36.060(1) ). Accordingly, the Court requires the plaintiffs to show that the interest in liberty protected by the Fourteenth Amendment "includes a right to commit suicide which itself includes a right to assistance in doing so." Ante, at 723. History and tradition provide ample support for refusing to recognize an open-ended constitutional right to commit suicide. Much more than the State's paternalistic interest *71 in protecting the individual from the irrevocable consequences of an ill-advised decision motivated by temporary concerns is at stake. There is truth in John Donne's observation that "No man is an island."[8] The
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John Donne's observation that "No man is an island."[8] The State has an interest in preserving and fostering the benefits that every human being may provide to the community—a community that thrives on the exchange of ideas, expressions of affection, shared memories, and humorous incidents, as well as on the material contributions that its members create and support. The value to others of a person's life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life. Thus, I fully agree with the Court that the "liberty" protected by the Due Process Clause does not include a categorical "right to commit suicide which itself includes a right to assistance in doing so." But just as our conclusion that capital punishment is not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so is it equally clear that a decision upholding a general statutory prohibition of assisted suicide does not mean that every possible application of the statute would be val A State, like Washington, that has authorized the death penalty, and thereby has concluded that the sanctity of human life does not require that it always be preserved, must acknowledge that there are situations in which an interest in hastening *72 death is legitimate. Indeed, not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection. II In the Court assumed that the interest in liberty protected by the Fourteenth Amendment encompassed the right of a terminally ill patient to direct the withdrawal of lifesustaining treatment. As the Court correctly observes today, that assumption "was not simply deduced from abstract concepts of personal autonomy." Ante, at 725. Instead, it was supported by the common-law tradition protecting the individual's general right to refuse unwanted medical treatment. We have recognized, however, that this common-law right to refuse treatment is neither absolute nor always sufficiently weighty to overcome valid countervailing state interests. As Justice Brennan pointed out in his dissent, we have upheld legislation imposing punishment on persons refusing to be vaccinated, n. citing and as Justice Scalia pointed out in his concurrence, the State ordinarily has the right to interfere with an attempt to commit suicide by, for example, forcibly placing a bandage on a self-inflicted wound to stop the flow of In most cases, the individual's constitutionally protected interest in his or her own physical autonomy, including the right to refuse unwanted medical treatment, will give way to the State's interest in
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medical treatment, will give way to the State's interest in preserving human life. however, was not the normal case. Given the irreversible nature of her illness and the progressive character of her suffering,[9] Nancy 's interest in refusing medical care was incidental to her more basic interest in controlling the manner and timing of her death. In finding that her *73 best interests would be served by cutting off the nourishment that kept her alive, the trial court did more than simply vindicate 's interest in refusing medical treatment; the court, in essence, authorized affirmative conduct that would hasten her death. When this Court reviewed the case and upheld Missouri's requirement that there be clear and convincing evidence establishing Nancy 's intent to have life-sustaining nourishment withdrawn, it made two important assumptions: (1) that there was a "liberty interest" in refusing unwanted treatment protected by the Due Process Clause; and (2) that this liberty interest did not "end the inquiry" because it might be outweighed by relevant state interests. I agree with both of those assumptions, but I insist that the source of Nancy 's right to refuse treatment was not just a common-law rule. Rather, this right is an aspect of a far broader and more basic concept of freedom that is even older than the common law.[10] This freedom embraces not merely a person's right to refuse a particular kind of unwanted treatment, but also her interest in dignity, and in determining the character of the memories that will survive long after her death.[11] In *7 recognizing that the State's interests did not outweigh Nancy 's liberty interest in refusing medical treatment, rested not simply on the common-law right to refuse medical treatment, but—at least implicitly—on the even more fundamental right to make this "deeply personal decision," Thus, the common-law right to protection from battery, which included the right to refuse medical treatment in most circumstances, did not mark "the outer limits of the substantive sphere of liberty" that supported the family's decision to hasten Nancy's death. Planned Parenthood of Southeastern Those limits have never been precisely defined. They are generally identified by the importance and character of the decision confronted by the individual, Whatever the outer limits of the concept may be, it definitely includes protection for matters "central to personal dignity and autonomy." It includes "the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating `basic values,' as being `fundamental,' and as being dignified by history and tradition. The
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`fundamental,' and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom—the *75 abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable." cert. denied, The case demonstrated that some state intrusions on the right to decide how death will be encountered are also intolerable. The now-deceased plaintiffs in this action may in fact have had a liberty interest even stronger than Nancy 's because, not only were they terminally ill, they were suffering constant and severe pain. Avoiding intolerable pain and the indignity of living one's final days incapacitated and in agony is certainly "[a]t the heart of [the] liberty. to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." While I agree with the Court that does not decide the issue presented by these cases, did give recognition, not just to vague, unbridled notions of autonomy, but to the more specific interest in making decisions about how to confront an imminent death. Although there is no absolute right to physician-assisted suicide, makes it clear that some individuals who no longer have the option of deciding whether to live or to die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the State's interest in preserving life at all costs. The liberty interest at stake in a case like this differs from, and is stronger than, both the common-law right to refuse medical treatment and the unbridled interest in deciding whether to live or die. It is an interest in deciding how, rather than whether, a critical threshold shall be crossed. III The state interests supporting a general rule banning the practice of physician-assisted suicide do not have the same *76 force in all cases. First and foremost of these interests is the "`unqualified interest in the preservation of human life,' " ante, at 728 (quoting ), which is equated with "`the sanctity of life,' " ante, at 728 (quoting American Law Institute, Model Penal Code 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980)). That interest not only justifies—it commands—maximum protection of every individual's interest in remaining alive, which in turn commands the same protection for decisions about whether to commence or to terminate life-support systems or to administer pain medication that may hasten death. Properly viewed, however, this interest is not a collective interest that should always
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this interest is not a collective interest that should always outweigh the interests of a person who because of pain, incapacity, or sedation finds her life intolerable, but rather, an aspect of individual freedom. Many terminally ill people find their lives meaningful even if filled with pain or dependence on others. Some find value in living through suffering; some have an abiding desire to witness particular events in their families' lives; many believe it a sin to hasten death. Individuals of different religious faiths make different judgments and choices about whether to live on under such circumstances. There are those who will want to continue aggressive treatment; those who would prefer terminal sedation; and those who will seek withdrawal from life-support systems and death by gradual starvation and dehydration. Although as a general matter the State's interest in the contributions each person may make to society outweighs the person's interest in ending her life, this interest does not have the same force for a terminally ill patient faced not with the choice of whether to live, only of how to die. Allowing the individual, rather than the State, to make judgments "`about the "quality" of life that a particular individual may enjoy,' " ante, at 729 (quoting ), does not mean that the lives of terminally ill, disabled people have less value than the lives of those who are healthy, see ante, at 732. Rather, it gives *77 proper recognition to the individual's interest in choosing a final chapter that accords with her life story, rather than one that demeans her values and poisons memories of her. See Brief for Bioethicists as Amici Curiae 11; see also R. Dworkin, Life's Dominion 213 ("Whether it is in someone's best interests that his life end in one way rather than another depends on so much else that is special about him— about the shape and character of his life and his own sense of his integrity and critical interests—that no uniform collective decision can possibly hope to serve everyone even decently"). Similarly, the State's legitimate interests in preventing suicide, protecting the vulnerable from coercion and abuse, and preventing euthanasia are less significant in this context. I agree that the State has a compelling interest in preventing persons from committing suicide because of depression or coercion by third parties. But the State's legitimate interest in preventing abuse does not apply to an individual who is not victimized by abuse, who is not suffering from depression, and who makes a rational and voluntary decision to seek assistance in dying. Although, as the New York
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to seek assistance in dying. Although, as the New York Task Force report discusses, diagnosing depression and other mental illness is not always easy, mental health workers and other professionals expert in working with dying patients can help patients cope with depression and pain, and help patients assess their options. See Brief for Washington State Psychological Association et al. as Amici Curiae 8-10. Relatedly, the State and amici express the concern that patients whose physical pain is inadequately treated will be more likely to request assisted suicide. Encouraging the development and ensuring the availability of adequate pain treatment is of utmost importance; palliative care, however, cannot alleviate all pain and suffering. See Orentlicher, Legalization of Physician Assisted Suicide: A Very Modest Revolution, 38 Boston College L. Rev. (Galley, p. 8) (1997) ("Greater use of palliative care would reduce the demand for *78 assisted suicide, but it will not eliminate [it]"); see also Brief for Coalition of Hospice Professionals as Amici Curiae 8 (citing studies showing that "[a]s death becomes more imminent, pain and suffering become progressively more difficult to treat"). An individual adequately informed of the care alternatives thus might make a rational choice for assisted suicide. For such an individual, the State's interest in preventing potential abuse and mistake is only minimally implicated. The final major interest asserted by the State is its interest in preserving the traditional integrity of the medical profession. The fear is that a rule permitting physicians to assist in suicide is inconsistent with the perception that they serve their patients solely as healers. But for some patients, it would be a physician's refusal to dispense medication to ease their suffering and make their death tolerable and dignified that would be inconsistent with the healing role. See Block & Billings, Patient Request to Hasten Death, 15 Archives Internal Med. 2039, 205 (A doctor's refusal to hasten death "may be experienced by the [dying] patient as an abandonment, a rejection, or an expression of inappropriate paternalistic authority"). For doctors who have longstanding relationships with their patients, who have given their patients advice on alternative treatments, who are attentive to their patient's individualized needs, and who are knowledgeable about pain symptom management and palliative care options, see Quill, Death and Dignity, A Case of Individualized Decision Making, 32 New England J. Med. 691-69 (1991), heeding a patient's desire to assist in her suicide would not serve to harm the physician-patient relationship. Furthermore, because physicians are already involved in making decisions that hasten the death of terminally ill patients—through termination of life support, withholding of medical treatment, and
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patients—through termination of life support, withholding of medical treatment, and terminal sedation—there is in fact significant tension between the traditional view of *79 the physician's role and the actual practice in a growing number of cases.[] As the New York State Task Force on Life and the Law recognized, a State's prohibition of assisted suicide is justified by the fact that the "`ideal' " case in which "patients would be screened for depression and offered treatment, effective pain medication would be available, and all patients would have a supportive committed family and doctor" is not the usual case. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context 0 Although, as the Court concludes today, these potential harms are sufficient to support the State's general public policy against assisted suicide, they will not always outweigh the individual liberty *750 interest of a particular patient. Unlike the Court of Appeals, I would not say as a categorical matter that these state interests are invalid as to the entire class of terminally ill, mentally competent patients. I do not, however, foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge. Future cases will determine whether such a challenge may succeed. IV In New York, a doctor must respect a competent person's decision to refuse or to discontinue medical treatment even though death will thereby ensue, but the same doctor would be guilty of a felony if she provided her patient assistance in committing suicide.[13] Today we hold that the Equal Protection Clause is not violated by the resulting disparate treatment of two classes of terminally ill people who may have the same interest in hastening death. I agree that the distinction between permitting death to ensue from an underlying fatal disease and causing it to occur by the administration of medication or other means provides a constitutionally sufficient basis for the State's classification.[1] Unlike the Court, however, see Vacco, post, at 801-802, I am not persuaded that in all cases there will in fact be a significant difference between the intent of the physicians, the patients, or the families in the two situations. There may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life; in both situations, the patient is seeking to hasten a certain, impending death. The doctor's intent might also
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hasten a certain, impending death. The doctor's intent might also be the same in prescribing lethal medication as it is in terminating *751 life support. A doctor who fails to administer medical treatment to one who is dying from a disease could be doing so with an intent to harm or kill that patient. Conversely, a doctor who prescribes lethal medication does not necessarily intend the patient's death—rather that doctor may seek simply to ease the patient's suffering and to comply with her wishes. The illusory character of any differences in intent or causation is confirmed by the fact that the American Medical Association unequivocally endorses the practice of terminal sedation—the administration of sufficient dosages of pain-killing medication to terminally ill patients to protect them from excruciating pain even when it is clear that the time of death will be advanced. The purpose of terminal sedation is to ease the suffering of the patient and comply with her wishes, and the actual cause of death is the administration of heavy doses of lethal sedatives. This same intent and causation may exist when a doctor complies with a patient's request for lethal medication to hasten her death.[15] Thus, although the differences the majority notes in causation and intent between terminating life support and assisting in suicide support the Court's rejection of the respondents' facial challenge, these distinctions may be inapplicable to particular terminally ill patients and their doctors. Our holding today in Vacco v. Quill, post, p. 7, that the Equal Protection Clause is not violated by New York's classification, just like our holding in Washington v. Glucksberg that the Washington statute is not invalid on its face, does not foreclose the possibility that some applications of the New *752 York statute may impose an intolerable intrusion on the patient's freedom. There remains room for vigorous debate about the outcome of particular cases that are not necessarily resolved by the opinions announced today. How such cases may be decided will depend on their specific facts. In my judgment, however, it is clear that the so-called "unqualified interest in the preservation of human life," ; ante, at 728, is not itself sufficient to outweigh the interest in liberty that may justify the only possible means of preserving a dying patient's dignity and alleviating her intolerable suffering. Justice Souter, concurring in the judgment. Three terminally ill individuals and four physicians who sometimes treat terminally ill patients brought this challenge to the Washington statute making it a crime "knowingly [to] ai[d] another person to attempt suicide," Wash. Rev. Code 9A.36.060 claiming on behalf of
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attempt suicide," Wash. Rev. Code 9A.36.060 claiming on behalf of both patients and physicians that it would violate substantive due process to enforce the statute against a doctor who acceded to a dying patient's request for a drug to be taken by the patient to commit suicide. The question is whether the statute sets up one of those "arbitrary impositions" or "purposeless restraints" at odds with the Due Process Clause of the Fourteenth Amendment. I conclude that the statute's application to the doctors has not been shown to be unconstitutional, but I write separately to give my reasons for analyzing the substantive due process claims as I do, and for rejecting this one. I Although the terminally ill original parties have died during the pendency of this case, the four physicians who remain *753 as respondents here[1] continue to request declaratory and injunctive relief for their own benefit in discharging their obligations to other dying patients who request their help.[2] See, e. g., Southern Pacific Terminal The case reaches us on an order granting summary judgment, and we must take as true the undisputed allegations that each of the patients was mentally competent and terminally ill, and that each made a knowing and voluntary choice to ask a doctor to prescribe "medications to be self-administered for the purpose of hastening death." Complaint3. The State does not dispute that each faced a passage to death more agonizing both mentally and physically, and more protracted over time, than death by suicide with a physician's help, or that each would have chosen such a suicide for the sake of personal dignity, apart even from relief from pain. Each doctor in this case claims to encounter patients like the original plaintiffs who have died, that is, mentally competent, terminally ill, and seeking medical help in "the voluntary self-termination of life."5— 2.8. While there may be no unanimity on the physician's professional obligation in such circumstances, I accept here respondents' representation that providing such patients with prescriptions for drugs that go beyond pain relief to hasten death would, in these circumstances, be consistent with standards of medical practice. Hence, I take it to be true, as respondents say, that the Washington statute prevents the exercise of a physician's "best professional judgment to prescribe medications to [such] patients in dosages that would enable them to act to hasten their own deaths."6; see also App. 35-37, 9-51, 55-57, 73-75. *75 In their brief to this Court, the doctors claim not that they ought to have a right generally to hasten patients' imminent deaths, but only to help
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generally to hasten patients' imminent deaths, but only to help patients who have made "personal decisions regarding their own bodies, medical care, and, fundamentally, the future course of their lives," Brief for Respondents and who have concluded responsibly and with substantial justification that the brief and anguished remainders of their lives have lost virtually all value to them. Respondents fully embrace the notion that the State must be free to impose reasonable regulations on such physician assistance to ensure that the patients they assist are indeed among the competent and terminally ill and that each has made a free and informed choice in seeking to obtain and use a fatal drug. Complaint ¶ 3.2; App. 28-1. In response, the State argues that the interest asserted by the doctors is beyond constitutional recognition because it has no deep roots in our history and traditions. Brief for Petitioners 21-25. But even aside from that, without disputing that the patients here were competent and terminally ill, the State insists that recognizing the legitimacy of doctors' assistance of their patients as contemplated here would entail a number of adverse consequences that the Washington Legislature was entitled to forestall. The nub of this part of the State's argument is not that such patients are constitutionally undeserving of relief on their own account, but that any attempt to confine a right of physician assistance to the circumstances presented by these doctors is likely to fail. First, the State argues that the right could not be confined to the terminally ill. Even assuming a fixed definition of that term, the State observes that it is not always possible to say with certainty how long a person may live. It asserts that "[t]here is no principled basis on which [the right] can be limited to the prescription of medication for terminally ill patients to administer to themselves" when the right's justifying principle is as broad as "`merciful termination *755 of suffering.' " at 5 ). Second, the State argues that the right could not be confined to the mentally competent, observing that a person's competence cannot always be assessed with certainty, Brief for Petitioners 3, and suggesting further that no principled distinction is possible between a competent patient acting independently and a patient acting through a duly appointed and competent surrogate, at 6. Next, according to the State, such a right might entail a right to or at least merge in practice into "other forms of life-ending assistance," such as euthanasia. Finally, the State believes that a right to physician assistance could not easily be distinguished from a
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to physician assistance could not easily be distinguished from a right to assistance from others, such as friends, family, and other health-care workers. The State thus argues that recognition of the substantive due process right at issue here would jeopardize the lives of others outside the class defined by the doctors' claim, creating risks of irresponsible suicides and euthanasia, whose dangers are concededly within the State's authority to address. II When the physicians claim that the Washington law deprives them of a right falling within the scope of liberty that the Fourteenth Amendment guarantees against denial without due process of law,[3] they are not claiming some sort of procedural defect in the process through which the statute has been enacted or is administered. Their claim, rather, is that the State has no substantively adequate justification for barring the assistance sought by the patient and sought to be offered by the physician. Thus, we are dealing with a claim to one of those rights sometimes described as rights *756 of substantive due process and sometimes as unenumerated rights, in view of the breadth and indeterminacy of the "due process" serving as the claim's textual basis. The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action. Although this practice has neither rested on any single textual basis nor expressed a consistent theory (or,before a much articulated one), a brief overview of its history is instructive on two counts. The persistence of substantive due process in our cases points to the legitimacy of the modern justification for such judicial review found in Justice Harlan's dissent in[] on which I will dwell further on, while the acknowledged failures of some of these cases point with caution to the difficulty raised by the present claim. Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, repeating *757 Magna Carta's guarantee of "the law of the land."[5] On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes. Thus, a court approved a statute legitimating a class of previous illegitimate marriages, as falling within the
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a class of previous illegitimate marriages, as falling within the terms of the "social compact," while making clear its power to review constitutionality in those terms. In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as "partial" legislation violating the State Constitution's "law of the land" clause. Bank of the ; ; And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the State's due process clause. The statute was deemed an excessive threat to the "fundamental rights of the citizen" to property. See generally E. Liberty Against Government 58-115 (198) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations *85—*9, *351—*397. Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the *758 judiciary's power to strike down legislation that conflicted with important but unenumerated principles of American government. In most such instances, after declaring its power to invalidate what it might find inconsistent with rights of liberty and property, the Court nevertheless went on to uphold the legislative Acts under review. See, e. g., ; (1) ; see also (No. 3,230) (CC ED Pa. 1823). But in the Court went further. It struck down an Act of the Georgia Legislature that purported to rescind a sale of public land ab initio and reclaim title for the State, and so deprive subsequent, good-faith purchasers of property conveyed by the original grantees. The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post facto laws, laws impairing contracts in Article I, 10, of the Constitution; and "general principles which are common to our free institutions," by which Chief Justice Marshall meant that a simple deprivation of property by the State could not be an authentically "legislative" Act. was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the Fourteenth Amendment was, of course, the case that the Amendment would in due course overturn, Dred Unlike Dred Scott was textually based on a Due Process Clause (in the Fifth Amendment, applicable to the National
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Process Clause (in the Fifth Amendment, applicable to the National Government), and it was in reliance on that Clause's protection of property that the Court invalidated the Missouri -52. This substantive protection of an owner's property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, at 51-52, the implication *759 being that the Government had no legitimate interest that could support the earlier congressional compromise. The ensuing judgment of history needs no recounting here. After the ratification of the Fourteenth Amendment, with its guarantee of due process protection against the States, interpretation of the words "liberty" and "property" as used in Due Process Clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley's dissent in the Slaughter-House Cases, in which he said that a person's right to choose a calling was an element of liberty (as the calling, once chosen, was an aspect of property) and declared that the liberty and property protected by due process are not truly recognized if such rights may be "arbitrarily assailed,"[6] After that, opinions comparable to those that preceded Dred Scott expressed willingness to review legislative action for consistency with the Due Process Clause even as they upheld the laws in question. See, e. g., ; ; Rail- road Comm'n Cases, ; See generally The theory became serious, however, beginning with where the Court invalidated a Louisiana statute for excessive interference with Fourteenth Amendment liberty to contract, at 588— 5, and offered a substantive interpretation of "liberty," that in the aftermath of the so-called Lochner Era has been scaled back in some respects, but expanded in others, and never repudiated in principle. The Court said that Fourteenth Amendment liberty includes "the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." "[W]e do not intend to hold that in no such case can the State exercise its police power," the Court added, but "[w]hen and how far such power may be legitimately exercised with regard to these subjects must be left
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legitimately exercised with regard to these subjects must be left for determination to each case as it arises." Although this principle was unobjectionable, what followed for a season was, in the realm of economic legislation, the echo of Dred Scott. Allgeyer was succeeded within a decade by and the era to which that case gave its name, famous now for striking down as arbitrary various sorts of economic regulations that post-New Deal courts have uniformly thought constitutionally sound. Compare, e. g., and with West Coast Hotel As the parentheticals here suggest, while the cases in the Lochner line routinely invoked a correct standard of constitutional arbitrariness review, they harbored the spirit of Dred Scott in their absolutist implementation of the standard they espoused. Even before the deviant economic due process cases had been repudiated, however, the more durable precursors of modern substantive due process were reaffirming this Court's obligation to conduct arbitrariness review, beginning with Without referring to any specific guarantee of the Bill of Rights, the Court invoked precedents from the Slaughter-House Cases through Adkins to declare that the Fourteenth Amendment protected "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." The Court then held that the same Fourteenth Amendment liberty included a teacher's right to teach and the rights of parents to direct their children's education without unreasonable interference by the States, at 00, with the result that Nebraska's prohibition on the teaching of foreign languages in the lower grades was "arbitrary and without reasonable relation to any end within the competency of the State," See also *762 (finding that a statute that all but outlawed private schools lacked any "reasonable relation to some purpose within the competency of the State"); ("[E]ven in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts." "Is that [injury] to which the statute has subjected [the appellant] a hardship so acute and shocking that our polity will not endure it? Does it violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?" (citation and internal quotation marks omitted)). After Meyer and Pierce, two further opinions took the major steps that lead to the modern law. The first
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major steps that lead to the modern law. The first was not even in a due process case but one about equal protection, where the Court emphasized the "fundamental" nature of individual choice about procreation and so foreshadowed not only the later prominence of procreation as a subject of liberty protection, but the corresponding standard of "strict scrutiny," in this Court's Fourteenth Amendment law. See Skinner, that is, added decisions regarding procreation to the list of liberties recognized in Meyer and Pierce and loosely suggested, as a gloss on their standard of arbitrariness, a judicial obligation to scrutinize any impingement on such an important interest with heightened care. In so doing, it suggested a point that Justice Harlan would develop, that the kind and degree of justification that a sensitive judge would demand of a State would depend on the importance of the interest being asserted by the individual. 367 U. S., at The second major opinion leading to the modern doctrine was Justice Harlan's dissent just cited, the conclusion of which was adopted in and the authority of which was acknowledged in Planned Parenthood of Southeastern See also n. The dissent is important *763 for three things that point to our responsibilities today. The first is Justice Harlan's respect for the tradition of substantive due process review itself, and his acknowledgment of the Judiciary's obligation to carry it on. For two centuries American courts, and for much of that time this Court, have thought it necessary to provide some degree of review over the substantive content of legislation under constitutional standards of textual breadth. The obligation was understood before Dred Scott and has continued after the repudiation of Lochner `s progeny, most notably on the subjects of segregation in public education, 37 U.S. 97, (195), interracial marriage, marital privacy and contraception, 31 U.S. 678, 68-691 ; at 81-86, abortion, Planned Parenthood of Southeastern at 89, 869-879 ; 10 U.S. 113, personal control of medical treatment, ; ; at ; see also and physical confinement, 50 U.S. 71, This enduring tradition of American constitutional practice is, in Justice Harlan's view, nothing more than what is required by the judicial authority and obligation to construe constitutional text and review legislation for conformity to that text. See Like many judges who preceded him and many who followed, he found it impossible to construe the text of due process without recognizing substantive, and not merely procedural, limitations. "Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation
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deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application *76 to individuals, nevertheless destroy the enjoyment of all three."[7] The text of the Due Process Clause thus imposes nothing less than an obligation to give substantive content to the words "liberty" and "due process of law." Following the first point of the dissent, on the necessity to engage in the sort of examination we conduct today, the dissent's second and third implicitly address those cases, already noted, that are now condemned with virtual unanimity as disastrous mistakes of substantive due process review. The second of the dissent's lessons is a reminder that the business of such review is not the identification of extratextual absolutes but scrutiny of a legislative resolution (perhaps unconscious) of clashing principles, each quite possibly worthy in and of itself, but each to be weighed within the history of our values as a people. It is a comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise. Thus informed, judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable. Part III, below, deals with this second point, and also with the dissent's third, which takes the form of an *765 object lesson in the explicit attention to detail that is no less essential to the intellectual discipline of substantive due process review than an understanding of the basic need to account for the two sides in the controversy and to respect legislation within the zone of reasonableness. III My understanding of unenumerated rights in the wake of the dissent and subsequent cases avoids the absolutist failing of many older cases without embracing the opposite pole of equating reasonableness with past practice described at a very specific level. See Planned Parenthood of Southeastern 505 U. S., at 87-89. That understanding begins with a concept of "ordered liberty," 367 U. S., at 59 ; see also 381 U. S., at comprising a continuum of rights to be free from "arbitrary impositions and purposeless restraints," 367 U. S., at "Due Process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect
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the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could *766 serve as a substitute, in this area, for judgment and restraint." at 52. See also 31 U.S. 9, ("Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful `respect for the teachings of history [and] solid recognition of the basic values that underlie our society' ") (quoting ). After the dissent, as before it, this enforceable concept of liberty would bar statutory impositions even at relatively trivial levels when governmental restraints are undeniably irrational as unsupported by any imaginable rationale. See, e. g., United 30 U.S. 1, ; see also at 55, 58 (referring to usual "presumption of constitutionality" and ordinary test "going merely to the plausibility of [a statute's] underlying rationale"). Such instances are suitably rare. The claims of arbitrariness that mark almost all instances of unenumerated substantive rights are those resting on "certain interests requir[ing] particularly careful scrutiny of the state needs asserted to justify their abridgment[,] [c]f. ]; [37 U.S. 97 (195)]," at ; that is, interests in liberty sufficiently important to be judged "fundamental," at 58; see also ). In the face of an interest this powerful a State may not rest on threshold rationality or a presumption of constitutionality, but may prevail only on the ground of an interest sufficiently compelling to place within the realm of the reasonable a refusal to recognize the individual right asserted. at 58 (an "enactment involv[ing] a most fundamental aspect *767 of `liberty' [is] subjec[t] to `strict scrutiny' ") ); see also (quoting (1)). The second constraint, again, simply reflects the fact that constitutional review, not judicial lawmaking, is a court's business here. The weighing or valuing of contending interests in this sphere is only the first step, forming the basis for determining whether the statute in question
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forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable in the way it resolves the conflict between the interests of state and individual. See, e. g., ; 57 U.S. 307, It is no justification for judicial intervention merely to identify a reasonable resolution of contending values that differs from the terms of the legislation under review. It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. Only if this standard points against the statute can the individual claimant be said to have a constitutional right. See 97 U. S., (quoting ).[10] *769 The dissent thus reminds us of the nature of review for reasonableness or arbitrariness and the limitations entailed by it. But the opinion cautions against the repetition of past error in another way as well, more by its example than by any particular statement of constitutional method: it reminds us that the process of substantive review by reasoned judgment, 367 U. S., at 52-5, is one of close criticism going to the details of the opposing interests and to their relationships with the historically recognized principles that lend them weight or value. Although the dissent disclaims the possibility of any general formula for due process analysis (beyond the basic analytic structure just described), see at 52, 5, Justice Harlan of course assumed that adjudication under the Due Process Clauses is like any other instance of judgment dependent on common-law method, being more or less persuasive according to the usual canons of critical discourse. See also 505 U. S., at 89 When identifying and assessing the competing interests of liberty and authority, for example, *770 the breadth of expression that a litigant or a judge selects in stating the competing principles will have much to do with the outcome and may be dispositive. As in any process of rational argumentation, we recognize that when a generally accepted principle is challenged, the broader the attack the less likely it is to succeed. The principle's defenders will, indeed, often try to characterize any challenge as just such a broadside, perhaps by couching the defense as if a broadside attack had occurred. So the Court in Dred Scott treated prohibition of slavery in the Territories as nothing less than a general assault on the concept of property. See -52. Just as results in substantive due process cases are tied to the selections of statements of the competing interests,
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tied to the selections of statements of the competing interests, the acceptability of the results is a function of the good reasons for the selections made. It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common-law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The "tradition is a living thing," 367 U. S., at 52 albeit one that moves by moderate steps carefully taken. "The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take its place in relation to what went before and further [cut] a channel for what is to come." at 5 (internal quotation marks omitted). Exact analysis and characterization of any due process claim are critical to the method and to the result. So, in Justice Harlan viewed it as essential to the plaintiffs' claimed right to use contraceptives that they sought to do so within the privacy of the marital bedroom. This detail in fact served two crucial and complementary *771 functions, and provides a lesson for today. It rescued the individuals' claim from a breadth that would have threatened all state regulation of contraception or intimate relations; extramarital intimacy, no matter how privately practiced, was outside the scope of the right Justice Harlan would have recognized in that case. See It was, moreover, this same restriction that allowed the interest to be valued as an aspect of a broader liberty to be free from all unreasonable intrusions into the privacy of the home and the family life within it, a liberty exemplified in constitutional provisions such as the Third and Fourth Amendments, in prior decisions of the Court involving unreasonable intrusions into the home and family life, and in the then-prevailing status of marriage as the sole lawful locus of intimate relations. at 58, 551.[11] The individuals' interest was therefore at its peak in because it was supported by a principle that distinguished of its own force between areas in which government traditionally had regulated (sexual relations outside of marriage) and those in which it had not (private marital intimacies), and thus was broad enough to cover the claim at hand without being so broad as to be shotthrough by exceptions. *772 On the other side of the balance, the State's interest in was not fairly
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of the balance, the State's interest in was not fairly characterized simply as preserving sexual morality, or doing so by regulating contraceptive devices. Just as some of the earlier cases went astray by speaking without nuance of individual interests in property or autonomy to contract for labor, so the State's asserted interest in was not immune to distinctions turning (at least potentially) on the precise purpose being pursued and the collateral consequences of the means chosen, see at 57-58. It was assumed that the State might legitimately enforce limits on the use of contraceptives through laws regulating divorce and annulment, or even through its tax policy, but not necessarily be justified in criminalizing the same practice in the marital bedroom, which would entail the consequence of authorizing state enquiry into the intimate relations of a married couple who chose to close their door, at 58-59. See also The same insistence on exactitude lies behind questions, in current terminology, about the proper level of generality at which to analyze claims and counterclaims, and the demand for fitness and proper tailoring of a restrictive statute is just another way of testing the legitimacy of the generality at which the government sets up its justification.[] We may *773 therefore classify Justice Harlan's example of proper analysis in any of these ways: as applying concepts of normal critical reasoning, as pointing to the need to attend to the levels of generality at which countervailing interests are stated, or as examining the concrete application of principles for fitness with their own ostensible justifications. But whatever the categories in which we place the dissent's example, it stands in marked contrast to earlier cases whose reasoning was marked by comparatively less discrimination, and it points to the importance of evaluating the claims of the parties now before us with comparable detail. For here we are faced with an individual claim not to a right on the part of just anyone to help anyone else commit suicide under any circumstances, but to the right of a narrow class to help others also in a narrow class under a set of limited circumstances. And the claimants are met with the State's assertion, among others, that rights of such narrow scope cannot be recognized without jeopardy to individuals whom the State may concededly protect through its regulations. IV A Respondents claim that a patient facing imminent death, who anticipates physical suffering and indignity, and is capable of responsible and voluntary choice, should have a right to a physician's assistance in providing counsel and drugs to be administered by the patient
Justice O'Connor
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Washington v. Glucksberg
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providing counsel and drugs to be administered by the patient to end life promptly. Complaint ¶ 3.1. They accordingly claim that a physician must have the corresponding right to provide such aid, contrary to the provisions of Wash. Rev. Code 9A.36.060 I do not understand the argument to rest on any assumption that rights either to suicide or to assistance in committing it are historically based as such. Respondents, rather, acknowledge the prohibition of each historically, but rely on the fact that to a substantial extent the State has repudiated that history. The result of this, respondents say, is to open *77 the door to claims of such a patient to be accorded one of the options open to those with different, traditionally cognizable claims to autonomy in deciding how their bodies and minds should be treated. They seek the option to obtain the services of a physician to give them the benefit of advice and medical help, which is said to enjoy a tradition so strong and so devoid of specifically countervailing state concern that denial of a physician's help in these circumstances is arbitrary when physicians are generally free to advise and aid those who exercise other rights to bodily autonomy. 1 The dominant western legal codes long condemned suicide and treated either its attempt or successful accomplishment as a crime, the one subjecting the individual to penalties, the other penalizing his survivors by designating the suicide's property as forfeited to the government. See W. Blackstone, Commentaries *188—*189 (commenting that English law considered suicide to be "ranked among the highest crimes" and deemed persuading another to commit suicide to be murder); see generally Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 2 Duquesne L. Rev. 1, 56-63 While suicide itself has generally not been considered a punishable crime in the United States, largely because the common-law punishment of forfeiture was rejected as improperly penalizing an innocent family, see most States have consistently punished the act of assisting a suicide as either a common-law or statutory crime and some continue to view suicide as an unpunishable crime. See generally at 67-100, 18-22.[13] Criminal prohibitions *775 on such assistance remain widespread, as exemplified in the Washington statute in question here.[1] The principal significance of this history in the State of Washington, according to respondents, lies in its repudiation *776 of the old tradition to the extent of eliminating the criminal suicide prohibitions. Respondents do not argue that the State's decision goes further, to imply that the State has repudiated any legitimate claim to discourage suicide or to limit its
Justice O'Connor
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Washington v. Glucksberg
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any legitimate claim to discourage suicide or to limit its encouragement. The reasons for the decriminalization, after all, may have had more to do with difficulties of law enforcement than with a shift in the value ascribed to *777 life in various circumstances or in the perceived legitimacy of taking one's own. See, e. g., Kamisar, Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia, in Euthanasia Examined 225, 229 (J. Keown ed. 1995); Celo Cruz, Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?, 18 Am. J. L. & Med. 369, 375 ; Marzen, O'Dowd, Crone, & Balch, 2 Duquesne L. Rev., Thus it may indeed make sense for the State to take its hands off suicide as such, while continuing to prohibit the sort of assistance that would make its commission easier. See, e. g., American Law Institute, Model Penal Code 210.5, Comment 5 (1980). Decriminalization does not, then, imply the existence of a constitutional liberty interest in suicide as such; it simply opens the door to the assertion of a cognizable liberty interest in bodily integrity and associated medical care that would otherwise have been in apposite so long as suicide, as well as assisting a suicide, was a criminal offense. This liberty interest in bodily integrity was phrased in a general way by then-Judge Cardozo when he said, "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body" in relation to his medical needs. 211 N.Y. 5, 9, N.E. 92, (191). The familiar examples of this right derive from the common law of battery and include the right to be free from medical invasions into the body, 97 U. S., at 269-279, as well as a right generally to resist enforced medication, see 9 U.S. 210, Thus "[i]t is settled now that the Constitution places limits on a State's right to interfere with a person's most basic decisions about bodily integrity." 505 U. S., at 89 ; see also 97 U. S., ; ; ; 70 U.S. 753, ; 32 *. Constitutional recognition of the right to bodily integrity underlies the assumed right, good against the State, to require physicians to terminate artificial life support, and the affirmative right to obtain medical intervention to cause abortion, see ; cf. 10 U. S., It is, indeed, in the abortion cases that the most telling recognitions of the importance of bodily integrity and the concomitant tradition of medical assistance have occurred. In the plaintiff contended that the Texas statute making it criminal for any person to
Justice O'Connor
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Washington v. Glucksberg
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the Texas statute making it criminal for any person to "procure an abortion," at 117, for a pregnant woman was unconstitutional insofar as it prevented her from "terminat[ing] her pregnancy by an abortion `performed by a competent, licensed physician, under safe, clinical conditions,' " at 0, and in striking down the statute we stressed the importance of the relationship between patient and physician, see The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, see ; 10 U. S., at 162, the Court recognized a woman's right to a physician's counsel and care. Like the decision to commit suicide, the decision to abort potential life can be made irresponsibly and under the influence of others, and yet the Court has held in the abortion cases that physicians are fit assistants. Without physician assistance in abortion, the woman's right would have too often amounted to nothing more than a right to self-mutilation, and without a physician to assist in the suicide of the dying, the patient's right will often be confined to crude methods of causing death, most shocking and painful to the decedent's survivors. *779 There is, finally, one more reason for claiming that a physician's assistance here would fall within the accepted tradition of medical care in our society, and the abortion cases are only the most obvious illustration of the further point. While the Court has held that the performance of abortion procedures can be restricted to physicians, the Court's opinion in recognized the doctors' role in yet another way. For, in the course of holding that the decision to perform an abortion called for a physician's assistance, the Court recognized that the good physician is not just a mechanic of the human body whose services have no bearing on a person's moral choices, but one who does more than treat symptoms, one who ministers to the patient. See ; see also 381 U. S., at 82 ; see generally R. Cabot, Ether Day Address, Boston Medical and Surgical J. 287, 288 (1920). This idea of the physician as serving the whole person is a source of the high value traditionally placed on the medical relationship. Its value is surely as apparent here as in the abortion cases, for just as the decision about abortion is not directed to correcting some pathology, so the decision in which a dying patient seeks help is not so limited. The patients here sought not only an end to pain (which they might have had, although perhaps at the price
Justice O'Connor
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Washington v. Glucksberg
https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/
(which they might have had, although perhaps at the price of stupor) but an end to their short remaining lives with a dignity that they believed would be denied them by powerful pain medication, as well as by their consciousness of dependency and helplessness as they approached death. In that period when the end is imminent, they said, the decision to end life is closest to decisions that are generally accepted as proper instances of exercising autonomy over one's own body, instances recognized under the Constitution and the State's own law, instances in which the help of physicians is accepted as falling within the traditional norm. *780 Respondents argue that the State has in fact already recognized enough evolving examples of this tradition of patient care to demonstrate the strength of their claim. Washington, like other States, authorizes physicians to withdraw life-sustaining medical treatment and artificially delivered food and water from patients who request it, even though such actions will hasten death. See Wash. Rev. Code 70.2.110, 70.2.051 ; see generally Notes to Uniform Rights of the Terminally Ill Act, 9B U. L. A. 168-169 (Supp. 1997) (listing state statutes). The State permits physicians to alleviate anxiety and discomfort when withdrawing artificial life-supporting devices by administering medication that will hasten death even further. And it generally permits physicians to administer medication to patients in terminal conditions when the primary intent is to alleviate pain, even when the medication is so powerful as to hasten death and the patient chooses to receive it with that understanding. See ; see generally Rousseau, Terminal Sedation in the Care of Dying Patients, 156 Archives of Internal Medicine 1785 ; Truog, Berde, Mitchell, & Grier, Barbiturates in the Care of the Terminally Ill,[15] *781 2 The argument supporting respondents' position thus progresses through three steps of increasing forcefulness. First, it emphasizes the decriminalization of suicide. Reliance on this fact is sanctioned under the standard that looks not only to the tradition retained, but to society's occasional choices to reject traditions of the legal past. See 367 U. S., at 52 While the common law prohibited both suicide and aiding a suicide, with the prohibition on aiding largely justified by the primary prohibition on self-inflicted death itself, see, e. g., American Law Institute, Model Penal Code 210.5, Comment 1, at 92-, and n. 7, the State's rejection of the traditional treatment of the one leaves the criminality of the other open to questioning that previously would not have been appropriate. The second step in the argument is to emphasize that the State's own act of decriminalization
Justice O'Connor
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Washington v. Glucksberg
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is to emphasize that the State's own act of decriminalization gives a freedom of choice much like the individual's option in recognized instances of bodily autonomy. One of these, abortion, is a legal right to choose in spite of the interest a State may legitimately invoke in discouraging the practice, just as suicide is now subject to choice, despite a state interest in discouraging it. The third step is to emphasize that respondents claim a right to assistance not on the basis of some broad principle that would be subject to exceptions if that continuing interest of the State's in discouraging suicide were to be recognized at all. Respondents base their claim on the traditional right to medical care and counsel, subject to the limiting conditions of informed, responsible choice when death is imminent, conditions that support a strong analogy to rights of care in other situations in which medical counsel and assistance have been available as a matter of course. There can be no stronger claim to a physician's assistance than at the time when death is imminent, a moral judgment implied by the State's own recognition of the legitimacy of medical procedures necessarily hastening the moment of impending death. *782 In my judgment, the importance of the individual interest here, as within that class of "certain interests" demanding careful scrutiny of the State's contrary claim, see at cannot be gainsa Whether that interest might in some circumstances, or at some time, be seen as "fundamental" to the degree entitled to prevail is not, however, a conclusion that I need draw here, for I am satisfied that the State's interests described in the following section are sufficiently serious to defeat the present claim that its law is arbitrary or purposeless. B The State has put forward several interests to justify the Washington law as applied to physicians treating terminally ill patients, even those competent to make responsible choices: protecting life generally, Brief for Petitioners 33, discouraging suicide even if knowing and voluntary, and protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvoluntary, -35. It is not necessary to discuss the exact strengths of the first two claims of justification in the present circumstances, for the third is dispositive for me. That third justification is different from the first two, for it addresses specific features of respondents' claim, and it opposes that claim not with a moral judgment contrary to respondents', but with a recognized state interest in the protection of nonresponsible individuals and those who do not stand in relation either to death or to
Justice O'Connor
1,997
14
concurring
Washington v. Glucksberg
https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/
do not stand in relation either to death or to their physicians as do the patients whom respondents describe. The State claims interests in protecting patients from mistakenly and involuntarily deciding to end their lives, and in guarding against both voluntary and involuntary euthanasia. Leaving aside any difficulties in coming to a clear concept of imminent death, mistaken decisions may result from inadequate palliative care or a terminal prognosis that turns out to be error; coercion and abuse may stem from the large medical bills that family members cannot bear *783 or unreimbursed hospitals decline to shoulder. Voluntary and involuntary euthanasia may result once doctors are authorized to prescribe lethal medication in the first instance, for they might find it pointless to distinguish between patients who administer their own fatal drugs and those who wish not to, and their compassion for those who suffer may obscure the distinction between those who ask for death and those who may be unable to request it. The argument is that a progression would occur, obscuring the line between the ill and the dying, and between the responsible and the unduly influenced, until ultimately doctors and perhaps others would abuse a limited freedom to aid suicides by yielding to the impulse to end another's suffering under conditions going beyond the narrow limits the respondents propose. The State thus argues, essentially, that respondents' claim is not as narrow as it sounds, simply because no recognition of the interest they assert could be limited to vindicating those interests and affecting no others. The State says that the claim, in practical effect, would entail consequences that the State could, without doubt, legitimately act to prevent. The mere assertion that the terminally sick might be pressured into suicide decisions by close friends and family members would not alone be very telling. Of course that is possible, not only because the costs of care might be more than family members could bear but simply because they might naturally wish to see an end of suffering for someone they love. But one of the points of restricting any right of assistance to physicians would be to condition the right on an exercise of judgment by someone qualified to assess the patient's responsible capacity and detect the influence of those outside the medical relationship. The State, however, goes further, to argue that dependence on the vigilance of physicians will not be enough. First, the lines proposed here (particularly the requirement of a knowing and voluntary decision by the patient) would be more difficult to draw than the lines that have limited
Justice O'Connor
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Washington v. Glucksberg
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more difficult to draw than the lines that have limited *78 other recently recognized due process rights. Limiting a State from prosecuting use of artificial contraceptives by married couples posed no practical threat to the State's capacity to regulate contraceptives in other ways that were assumed at the time of to be legitimate; the trimester measurements of and the viability determination of were easy to make with a real degree of certainty. But the knowing and responsible mind is harder to assess.[16] Second, this difficulty could become the greater by combining with another fact within the realm of plausibility, that physicians simply would not be assiduous to preserve the line. They have compassion, and those who would be willing to assist in suicide at all might be the most susceptible to the wishes of a patient, whether the patient was technically quite responsible or not. Physicians, and their hospitals, have their own financial incentives, too, in this new age of managed care. Whether acting from compassion or under *785 some other influence, a physician who would provide a drug for a patient to administer might well go the further step of administering the drug himself; so, the barrier between assisted suicide and euthanasia could become porous, and the line between voluntary and involuntary euthanasia as well.[17] The case for the slippery slope is fairly made out here, not because recognizing one due process right would leave a court with no principled basis to avoid recognizing another, but because there is a plausible case that the right claimed would not be readily containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to temptation, noble or not. Respondents propose an answer to all this, the answer of state regulation with teeth. Legislation proposed in several States, for example, would authorize physician-assisted suicide but require two qualified physicians to confirm the patient's diagnosis, prognosis, and competence; and would mandate that the patient make repeated requests witnessed by at least two others over a specified times pan; and would impose reporting requirements and criminal penalties for various acts of coercion. See App. to Brief for State Legislators as Amici Curiae 1a—2a. But at least at this moment there are reasons for caution in predicting the effectiveness of the teeth proposed. Respondents' proposals, as it turns out, sound much like the guidelines now in place in the Netherlands, the only place where experience with physician-assisted suicide and euthanasia has yielded empirical evidence about how such regulations might affect actual practice. Dutch physicians must engage
Justice O'Connor
1,997
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Washington v. Glucksberg
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such regulations might affect actual practice. Dutch physicians must engage in consultation before proceeding, and must decide whether the patient's decision is voluntary, well considered, and stable, whether the request to die is enduring and made more than once, and whether the patient's future will involve *786 unacceptable suffering. See C. Regulating Death 0-3 (1991). There is, however, a substantial dispute today about what the Dutch experience shows. Some commentators marshall evidence that the Dutch guidelines have in practice failed to protect patients from involuntary euthanasia and have been violated with impunity. See, e. g., H. Hendin, Seduced By Death 75-8 (1997) (noting many cases in which decisions intended to end the life of a fully competent patient were made without a request from the patient and without consulting the patient); Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, in Euthanasia Examined 261, 289 (J. Keown ed. 1995) (guidelines have "proved signally ineffectual; non-voluntary euthanasia is now widely practised and increasingly condoned in the Netherlands"); at 10-113. This evidence is contested. See, e. g., R. Epstein, Mortal Peril 322 (1997) ("Dutch physicians are not euthanasia enthusiasts and they are slow to practice it in individual cases"); R. Posner, Aging and Old Age 22, and n. 23 (1995) (noting fear of "doctors' rushing patients to their death" in the Netherlands "has not been substantiated and does not appear realistic"); Van der Wal, Van Eijk, Leenen, & Spreeuwenberg, Euthanasia and Assisted Suicide, 2, Do Dutch Family Doctors Act Prudently?, 9 Family Practice 135 (finding no serious abuse in Dutch practice). The day may come when we can say with some assurance which side is right, but for now it is the substantiality of the factual disagreement, and the alternatives for resolving it, that matter. They are, for me, dispositive of the due process claim at this time. I take it that the basic concept of judicial review with its possible displacement of legislative judgment bars any finding that a legislature has acted arbitrarily when the following conditions are met: there is a serious factual controversy over the feasibility of recognizing the claimed right without at the same time making it impossible for the State to engage in an undoubtedly legitimate exercise of power; facts *787 necessary to resolve the controversy are not readily ascertainable through the judicial process; but they are more readily subject to discovery through legislative factfinding and experimentation. It is assumed in this case, and must be, that a State's interest in protecting those unable to make responsible decisions and those who make no decisions at all
Justice O'Connor
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Washington v. Glucksberg
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responsible decisions and those who make no decisions at all entitles the State to bar aid to any but a knowing and responsible person intending suicide, and to prohibit euthanasia. How, and how far, a State should act in that interest are judgments for the State, but the legitimacy of its action to deny a physician the option to aid any but the knowing and responsible is beyond question. The capacity of the State to protect the others if respondents were to prevail is, however, subject to some genuine question, underscored by the responsible disagreement over the basic facts of the Dutch experience. This factual controversy is not open to a judicial resolution with any substantial degree of assurance at this time. It is not, of course, that any controversy about the factual predicate of a due process claim disqualifies a court from resolving it. Courts can recognize captiousness, and most factual issues can be settled in a trial court. At this point, however, the factual issue at the heart of this case does not appear to be one of those. The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country's legal administration can be soundly undertaken through American courtroom litigation. While an extensive literature on any subject can raise the hopes for judicial understanding, the literature on this subject is only nascent. Since there is little experience directly bearing on the issue, the most that can be said is that whichever way the Court might rule today, events could overtake its assumptions, as experimentation in some jurisdictions confirmed or discredited the concerns about progression from assisted suicide to euthanasia. *788 Legislatures, on the other hand, have superior opportunities to obtain the facts necessary for a judgment about the present controversy. Not only do they have more flexible mechanisms for fact finding than the Judiciary, but their mechanisms include the power to experiment, moving forward and pulling back as facts emerge within their own jurisdictions. There is, indeed, good reason to suppose that in the absence of a judgment for respondents here, just such experimentation will be attempted in some of the States. See, e. g., Ore. Rev. Stat. 7.800 et seq. ; App. to Brief for State Legislators as Amici Curiae 1a (listing proposed statutes). I do not decide here what the significance might be of legislative foot dragging in ascertaining the facts going to the State's argument that the right in question could not be confined as claimed. Sometimes a court may
Justice O'Connor
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concurring
Washington v. Glucksberg
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could not be confined as claimed. Sometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims. See, e. g., 37 U.S. 97 (195). Now, it is enough to say that our examination of legislative reasonableness should consider the fact that the Legislature of the State of Washington is no more obviously at fault than this Court is in being uncertain about what would happen if respondents prevailed today. We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred. There is a closely related further reason as well. One must bear in mind that the nature of the right claimed, if recognized as one constitutionally required, would differ in no essential way from other constitutional rights guaranteed by enumeration or derived from some more definite textual source than "due process." An unenumerated right should not therefore be recognized, with the effect *789 of displacing the legislative ordering of things, without the assurance that its recognition would prove as durable as the recognition of those other rights differently derived. To recognize a right of lesser promise would simply create a constitutional regime too uncertain to bring with it the expectation of finality that is one of this Court's central obligations in making constitutional decisions. See 505 U. S., at 86-869. Legislatures, however, are not so constrained. The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents' claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time. Justice Ginsburg, concurring in the judgments.[*] I concur in the Court's judgments in these cases substantially for the reasons stated by Justice O'Connor in her concurring opinion, ante, p. 736. Justice Breyer, concurring in the judgments.[†] I believe that Justice O'Connor's views, which I share, have greater legal significance than the Court's opinion suggests. I join her separate opinion, except insofar as it joins the majority. And I concur in the judgments. I shall briefly explain how I differ from the Court. I
Justice O'Connor
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concurring
Washington v. Glucksberg
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shall briefly explain how I differ from the Court. I agree with the Court in Vacco v. Quill, post, at 800-809, that the articulated state interests justify the distinction *790 drawn between physician assisted suicide and withdrawal of life support. I also agree with the Court that the critical question in both of the cases before us is whether "the `liberty' specially protected by the Due Process Clause includes a right" of the sort that the respondents assert. Washington v. Glucksberg, ante, at 723. I do not agree, however, with the Court's formulation of that claimed "liberty" interest. The Court describes it as a "right to commit suicide with another's assistance." Ante, at 72. But I would not reject the respondents' claim without considering a different formulation, for which our legal tradition may provide greater support. That formulation would use words roughly like a "right to die with dignity." But irrespective of the exact words used, at its core would lie personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering—combined. As Justice Souter points out, ante, at 762-765 (opinion concurring in judgment), Justice Harlan's dissenting opinion in offers some support for such a claim. In that opinion, Justice Harlan referred to the "liberty" that the Fourteenth Amendment protects as including "a freedom from all substantial arbitrary impositions and purposeless restraints" and also as recognizing that "certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." at The "certain interests" to which Justice Harlan referred may well be similar (perhaps identical) to the rights, liberties, or interests that the Court today, as in the past, regards as "fundamental." Ante, at 720; see also Planned Parenthood of Southeastern ; 05 U.S. 38 ; ; 32 U.S. 165 ; *791 Justice Harlan concluded that marital privacy was such a "special interest." He found in the Constitution a right of "privacy of the home"—with the home, the bedroom, and "intimate details of the marital relation" at its heart—by examining the protection that the law had earlier provided for related, but not identical, interests described by such words as "privacy," "home," and "family." 367 U.S., at 58, 552; cf. The respondents here essentially ask us to do the same. They argue that one can find a "right to die with dignity" by examining the protection the law has provided for related, but not identical, interests relating to personal dignity, medical treatment, and freedom from state-inflicted pain. See 30 U.S. 651 ; ; I do not believe, however, that this Court
Justice O'Connor
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Washington v. Glucksberg
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; ; I do not believe, however, that this Court need or now should decide whether or a not such a right is "fundamental." That is because, in my view, the avoidance of severe physical pain (connected with death) would have to constitute an essential part of any successful claim and because, as Justice O'Connor points out, the laws before us do not force a dying person to undergo that kind of pain. Ante, at 736-737 (concurring opinion). Rather, the laws of New York and of Washington do not prohibit doctors from providing patients with drugs sufficient to control pain despite the risk that those drugs themselves will kill. Cf. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context 163, n. 29 And under these circumstances the laws of New York and Washington would overcome any remaining significant interests and would be justified, regardless. Medical technology, we are repeatedly told, makes the administration of pain-relieving drugs sufficient, except for a very few individuals for whom the ineffectiveness of pain control medicines can mean not pain, but the need for sedation *792 which can end in a coma. Brief for National Hospice Organization 8; Brief for American Medical Association (AMA) et al. as Amici Curiae 6; see also Byock, Consciously Walking the Fine Line: Thoughts on a Hospice Response to Assisted Suicide and Euthanasia, 9 J. Palliative Care 25, 26 ; New York State Task Force, at and n. 37. We are also told that there are many instances in which patients do not receive the palliative care that, in principle, is available, at 3-7; Brief for AMA as Amici Curiae 6; Brief for Choice in Dying, Inc., as Amici Curiae 20, but that is so for institutional reasons or inadequacies or obstacles, which would seem possible to overcome, and which do not include a prohibitive set of laws. Ante, at 736-737 ; see also 2 House of Lords, Session 19- Report of Select Committee on Medical Ethics 113 (indicating that the number of palliative care centers in the United Kingdom, where physician assisted suicide is illegal, significantly exceeds that in the Netherlands, where such practices are legal). This legal circumstance means that the state laws before us do not infringe directly upon the (assumed) central interest (what I have called the core of the interest in dying with dignity) as, by way of contrast, the state anti contraceptive laws at issue in did interfere with the central interest there at stake—by bringing the State's police powers to
Justice Stevens
2,007
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dissenting
Morse v. Frederick
https://www.courtlistener.com/opinion/145707/morse-v-frederick/
A significant fact barely mentioned by the Court sheds a revelatory light on the motives of both the students and the principal of Juneau-Douglas High School (JDHS). On January 24, 2002, the Olympic Torch Relay gave those Alaska residents a rare chance to appear on national television. As Joseph Frederick repeatedly explained, he did not address the curious message—"BONG HiTS 4 JESUS"—to his fellow students. He just wanted to get the camera crews' attention. Moreover, concern about a nationwide evaluation of the conduct of the JDHS student body would have justified the principal's decision to remove an attention-grabbing 14-foot banner, even if it had merely proclaimed "Glaciers Melt!" I agree with the Court that the principal should not be held liable for pulling down Frederick's banner. See I would hold, however, that the school's interest in protecting its students from exposure to speech "reasonably regarded as promoting illegal drug use," ante, at 2622, cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more. The Court holds otherwise only after laboring to establish two uncontroversial propositions: first, that the constitutional rights of students in school settings are not coextensive with the rights of adults, see ante, at 2625-2628; and second, that deterring drug use by schoolchildren is a valid and terribly important interest, see ante, at 2627-2629. As to the first, I take the Court's point that the message on Frederick's banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly "advocates the use of substances that are illegal to *2644 minors." App. to Pet. for Cert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything. In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school's decision to punish Frederick for expressing a view with which it disagreed. I In December we were engaged in a controversial war, a war that "divided this country as
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a controversial war, a war that "divided this country as few other issues ever have." Having learned that some students planned to wear black armbands as a symbol of opposition to the country's involvement in Vietnam, officials of the Des Moines public school district adopted a policy calling for the suspension of any student who refused to remove the armband. As we explained when we considered the propriety of that policy, "[t]he school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners." The district justified its censorship on the ground that it feared that the expression of a controversial and unpopular opinion would generate disturbances. Because the school officials had insufficient reason to believe that those disturbances would "materially and substantially interfere with the requirements of discipline in the operation of the school," we found the justification for the rule to lack any foundation and therefore held that the censorship violated the First Amendment. (internal quotation marks omitted). Justice Harlan dissented, but not because he thought the school district could censor a message with which it disagreed. Rather, he would have upheld the district's rule only because the students never cast doubt on the district's anti-disruption justification by proving that the rule was motivated "by other than legitimate school concerns —for example, a desire to prohibit the expression of an unpopular point of view while permitting expression of the dominant opinion." Two cardinal First Amendment principles animate both the Court's opinion in and Justice Harlan's dissent. First, censorship based on the content of speech, particularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification: "Discrimination against speech because of its message is presumed to be unconstitutional. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." *2645 Second, punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid. See (distinguishing "mere advocacy" of illegal conduct from "incitement to imminent lawless action"). However necessary it may be to modify those principles in the school setting, affirmed their continuing 393 U.S., ("In order for the State in the person of
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U.S., ("In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in that conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained" (internal quotation marks omitted)). As other federal courts have long recognized, under "regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of other students. requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." (emphasis added). Yet today the Court fashions a test that trivializes the two cardinal principles upon which rests. See ante, at 2629 ("[S]chools [may] restrict student expression that they reasonably regard as promoting illegal drug use"). The Court's test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25—a viewpoint, incidentally, that Frederick has disavowed, see Unlike our recent decision in Tennessee Secondary School Athletic see also ante, at 2637-2638 (ALITO, J., concurring), the Court's holding in this case strikes at "the heart of the First Amendment" because it upholds a punishment meted out on the basis of a listener's disagreement with her understanding (or, more likely, misunderstanding) of the speaker's viewpoint. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." It is also perfectly clear that "promoting illegal drug use," ante, at 2629, comes nowhere close to proscribable "incitement to imminent lawless action." Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship: "Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the *2646
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incitement and there is nothing to indicate that the *2646 advocacy would be immediately acted upon." No one seriously maintains that drug advocacy (much less Frederick's ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, "ha[s] no chance of starting a present conflagration." II The Court rejects outright these twin foundations of because, in its view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. Whether or not such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.[1] See infra, at 2650-2651. I will nevertheless assume for the sake of argument that the school's concededly powerful interest in protecting its students adequately supports its restriction on "any assembly or public expression that advocates the use of substances that are illegal to minors" App. to Pet. for Cert. 53a. Given that the relationship between schools and students "is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults," Vernonia School Dist. it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting. And while conventional speech may be restricted only when likely to "incit[e] imminent lawless action," 395 U.S., at But it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively —and not very reasonably—thinks is tantamount to express advocacy. Cf. Masses Publishing (S.D.N.Y.1917) (Hand, J.) (distinguishing sharply between "agitation, legitimate as such" and "the direct advocacy" of unlawful conduct). Even the school recognizes the paramount need to hold the line between, on the one hand, non-disruptive speech that merely expresses a viewpoint that is unpopular or contrary to the school's preferred message, and on the other hand, advocacy of an illegal or unsafe course of conduct. The district's prohibition of drug advocacy is a gloss on a more general rule that is otherwise quite tolerant of non-disruptive student speech: "Students will not be disturbed in the exercise of their constitutionally guaranteed rights to assemble peaceably and to express ideas and opinions, privately or publicly, provided that their activities do not infringe on the rights of others and do not interfere with the operation of the educational program. "The Board
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interfere with the operation of the educational program. "The Board will not permit the conduct on school premises of any willful *2647 activity that interferes with the orderly operation of the educational program or offends the rights of others. The Board specifically prohibits any assembly or public expression that advocates the use of substances that are illegal to minors" App. to Pet. for Cert. 53a; see also ante, at 2623 (quoting rule in part). There is absolutely no evidence that Frederick's banner's reference to drug paraphernalia "willful[ly]" infringed on anyone's rights or interfered with any of the school's educational programs.[2] On its face, then, the rule gave Frederick wide berth "to express [his] ideas and opinions" so long as they did not amount to "advoca[cy]" of drug use. If the school's rule is, by hypothesis, a valid one, it is valid only insofar as it scrupulously preserves adequate space for constitutionally protected speech. When First Amendment rights are at stake, a rule that "sweep[s] in a great variety of conduct under a general and indefinite characterization" may not leave "too wide a discretion in its application." Therefore, just as we insisted in that the school establish some likely connection between the armbands and their feared consequences, so too JDHS must show that Frederick's supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana. But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky; "[t]he mode of analysis [it] employ[s] is not entirely clear," see ante, at 2626. On occasion, the Court suggests it is deferring to the principal's "reasonable" judgment that Frederick's sign qualified as drug advocacy.[3] At other times, the Court seems to say that it thinks the banner's message constitutes express advocacy.[4] Either way, its approach is indefensible. To the extent the Court defers to the principal's ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see -448, yet would permit a listener's *2648 perceptions to determine which speech deserved constitutional protection.[5] Such a peculiar doctrine is alien to our case law. In this Court affirmed the conviction of a group of Russian "rebels, revolutionists, [and] anarchists," (internal quotation marks omitted), on the ground that the leaflets they distributed were thought to "incite, provoke, and encourage resistance to the United States," (internal quotation marks omitted).
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encourage resistance to the United States," (internal quotation marks omitted). Yet Justice Holmes' dissent—which has emphatically carried the day—never inquired into the reasonableness of the United States' judgment that the leaflets would likely undermine the war effort. The dissent instead ridiculed that judgment: "nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so." we overturned the conviction of a union organizer who violated a restraining order forbidding him from exhorting workers. In so doing, we held that the distinction between advocacy and incitement could not depend on how one of those workers might have understood the organizer's speech. That would "pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning." we vacated a civil rights leader's conviction for disturbing the peace, even though a Baton Rouge sheriff had "deem[ed]" the leader's "appeal to students to sit in at the lunch counters to be `inflammatory.'" We never asked if the sheriff's in-person, on-the-spot judgment was "reasonable." Even in Fraser, we made no inquiry into whether the school administrators reasonably thought the student's speech was obscene or profane; we rather satisfied ourselves that "[t]he pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students—indeed, to any mature person." ("[I]n cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression" (internal quotation marks omitted)).[6] *2649 To the extent the Court independently finds that "BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that. Ante, at 2625 (positing that the banner might mean, alternatively, "`[Take] bong hits,'" "`bong hits [are a good thing],'" or "`[we take] bong hits'"). Frederick's credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything.[7] But most importantly, it takes real imagination to read a "cryptic"
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most importantly, it takes real imagination to read a "cryptic" message (the Court's characterization, not mine, see ib at 2624-2625) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point. Even if advocacy could somehow be wedged into Frederick's obtuse reference to marijuana, that advocacy was at best subtle and ambiguous. There is abundant precedent, including another opinion The Chief Justice announces today, for the proposition that when the "First Amendment is implicated, the tie goes to the speaker," Federal Election L.Ed.2d WL 1804336, and that "when it comes to defining what speech qualifies as the functional equivalent of express advocacy we give the benefit of the doubt to speech, not censorship," post, at 2674. If this were a close case, the tie would have to go to Frederick's speech, not to the principal's strained reading of his quixotic message. Among other things, the Court's hamhanded, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.[8] See 89 * ("[Students] may not be confined to the expression of those sentiments that are officially approved"). If Frederick's stupid reference to marijuana can in the Court's view justify censorship, then high school students everywhere could be forgiven for zipping their mouths about drugs at school lest some "reasonable" observer censor and then punish them for promoting drugs. See also ante, at 2639 (BREYER, J., concurring in judgment in part and dissenting in part). Consider, too, that the school district's rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all "substances that are illegal to minors." App. to Pet. for Cert. 53a; see also App. 83 (expressly defining "`drugs'" to include "all alcoholic beverages"). Given the tragic consequences of teenage alcohol consumption—drinking causes far more fatal accidents than the misuse of marijuana—the school district's interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court's reasoning,
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its interest in preventing marijuana use. Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a "WINE SiPS 4 JESUS" banner—which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message—the breathtaking sweep of its opinion suggests it would. III Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message. Our First Amendment jurisprudence has identified some categories of expression that are less deserving of protection than others—fighting words, obscenity, and commercial speech, to name a few. Rather than reviewing our opinions discussing such categories, I mention two personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use. The Vietnam War is remembered today as an unpopular war. During its early stages, however, "the dominant opinion" that Justice Harlan mentioned in his dissent regarded opposition to the war as unpatriotic, if not 393 U.S., and the *2651 vilification of vocal opponents of the war like Julian Bond, cf. In when the Des Moines students wore their armbands, the school district's fear that they might "start an argument or cause a disturbance" was well founded. 393 U.S., Given that context, there is special force to the Court's insistence that "our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom—this kind of openness —that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society." -509, As we now know, the then-dominant opinion about the Vietnam War was not etched in stone. Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public
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supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans' views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920's and early 1930's was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,[9] and of the majority of voters in each of the several States that tolerate medicinal uses of the product,[10] lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting —however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely. Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. ; (Holmes, J., dissenting); In the national debate about a serious issue, it is the expression of the minority's viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular. I respectfully dissent.