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per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | Petitioner LaRoyce Lathair Smith was convicted of capital murder and sentenced to death by a jury in Dallas County, Before the jury reached its sentence, the trial judge *38 issued a supplemental "nullification instruction." Ex parte Smith, That instruction directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. n we held a similar "nullification instruction" constitutionally inadequate because it did not allow the jury to give "`full consideration and full effect to mitigating circumstances'" in choosing the defendant's appropriate sentence. ). Despite our holding in Penry the Court of Criminal Appeals rejected petitioner's request for postconviction relief. The court reasoned that the instruction either was irrelevant because petitioner did not proffer "constitutionally significant" mitigation evidence, or was sufficiently distinguishable from the instruction in Penry to survive constitutional scrutiny. n. 21. We grant the petition for certiorari and petitioner's motion for leave to proceed in forma pauperis, and reverse. n 1991, petitioner was convicted of brutally murdering one of his former co-workers at a Taco Bell in Dallas County. The victim and one of her co-workers were closing down the restaurant when petitioner and several friends asked to be let in to use the telephone. The two employees recognized petitioner and let him in. Petitioner then told his former co-workers to leave because he wanted to rob the restaurant. When they did not leave, petitioner killed one co-worker by pistol-whipping her and shooting her in the back. Petitioner also threatened, but did not harm, his other former co-worker before exiting with his friends. The jury found petitioner guilty of capital murder beyond a reasonable doubt. *39 At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others.[1] Approximately two years prior to the trial, we had held that presenting only these two special issues, without additional instructions regarding the jury's duty to consider mitigation evidence, violated the Eighth Amendment. Shortly after petitioner's trial, the Legislature amended its capital sentencing scheme to require juries to take "into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant" in deciding whether there are sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Penry (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) ). Petitioner, however, did not receive the benefit |
per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | Art. 37.071(2)(e)(1) ). Petitioner, however, did not receive the benefit of the new statutory instruction at his trial. nstead, just as in Penry petitioner was sentenced pursuant to a supplemental instruction provided to the jury by the trial judge.[2] That instruction read: *40 "`You are instructed that you shall consider any evidence which, in your opinion, is mitigating. Mitigating evidence is evidence that reduces the Defendant's personal or moral culpability or blameworthiness, and may include, but is not limited to, any aspect of the Defendant's character, record, background, or circumstances of the offense for which you have found him guilty. Our law does not specify what may or may not be considered as mitigating evidence. Neither does our law provide a formula for determining how much weight, if any, a mitigating circumstance deserves. You may hear evidence which, in your judgment, has no relationship to any of the Special ssues, but if you find such evidence is mitigating under these instructions, you shall consider it in the following instructions of the Court. You, and each of you, are the sole judges of what evidence, if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those which have no relationship to any of the Special ssues, deserves. "`n answering the Special ssues submitted to you herein, if you believe that the State has proved beyond a reasonable doubt that the answers to the Special ssues are "Yes," and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special ssues "No" in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. n this regard, you are further instructed that the State of *41 must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you. "`You are instructed that you may deliberate as a body about mitigating circumstances, but you are not required to reach a unanimous verdict as to their existence or weight. When you vote about the Special ssues, each of you must decide for yourself whether mitigating circumstances exist and, if so, how much weight they deserve.'" 132 S.W.3d, at Employing the framework of special issues modified by the supplemental nullification instruction, the jury considered a variety of mitigation evidence. Petitioner presented evidence that (1) he had been diagnosed with potentially organic learning disabilities and speech handicaps at an early age; |
per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | organic learning disabilities and speech handicaps at an early age; (2) he had a verbal Q score of 7 and a full Q of 78 and, as a result, had been in special education classes throughout most of his time in school; (3) despite his low Q and learning disabilities, his behavior at school was often exemplary; (4) his father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family members to support a drug addiction; and () he was only 19 when he committed the crime. n response, the prosecution submitted evidence demonstrating that petitioner acted deliberately and cruelly. The prosecution emphasized that petitioner knew his victim, yet stabbed her repeatedly in numerous places on her body. With respect to petitioner's future dangerousness, the prosecution stressed that petitioner had previously been convicted of misdemeanor assault and proffered evidence suggesting that he had violated several drug laws. During closing arguments at the punishment phase, the prosecution reminded the jury of its duty to answer truthfully the two special issues of deliberateness and future dangerousness. *42 "Now, when we talked to you on voir dire, we talked to you about and we spent a lot of time talking to you to determine whether or not you could follow the law. You told us two very important things when we talked to you. First of all, you told us that in the appropriate case that you could give the death penalty. Secondly, you said, `Mr. Nancarrow, Ms. McDaniel, if you prove to me that the answers to those special issues should be yes, then can answer them yes.' f you wavered, if you hesitated one minute on that, then guarantee you, you weren't going to be on this jury. We believed you then, and we believe you now." Pet. for Cert. 6. The jury verdict form tracked the final reminders the prosecution gave the jury. The form made no mention of nullification. Nor did it say anything about mitigation evidence. nstead, the verdict form asked whether petitioner committed the act deliberately and whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury was allowed to give "Yes" or "No" answers only. The jury answered both questions "Yes" and sentenced petitioner to death. App. 4 to Pet. for Cert. On direct appeal, petitioner argued that our holding in Penry rendered his jury instructions unconstitutional because the special issues did not allow the jury to give effect to his mitigation |
per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | not allow the jury to give effect to his mitigation evidence. The Court of Criminal Appeals affirmed petitioner's sentence, reasoning that the nullification instruction provided an adequate vehicle through which the jury could consider petitioner's evidence. We denied certiorari on May 1, 199. Petitioner filed an original writ of habeas corpus in the trial court in 1998. That suit was dismissed as untimely, but the Legislature amended its criminal code in such a way as to allow petitioner to file a timely writ. Petitioner did so, claiming that his jury was instructed in violation of *43 the Eighth Amendment. Before the Court of Criminal Appeals, petitioner argued that the jury instructions in his case ran afoul of our holding in Penry The court denied petitioner's application on the merits.[3] The Court of Criminal Appeals issued its opinion just prior to our decision in n we reversed the Fifth Circuit's refusal to grant a certificate of appealability to a defendant who was sentenced under the capital sentencing scheme prior to the legislative revisions which took place in the aftermath of Penry relying upon Penry argued that ' two special issues deliberateness and future dangerousness did not allow the jury to give effect to his mitigation evidence and that the trial court's failure to issue a supplemental mitigation instruction that would allow the jury to give full effect to his evidence rendered his death sentence unconstitutional. The state court and the Fifth Circuit both held that the lack of an adequate mitigation instruction was irrelevant. The courts both determined that had failed to satisfy the Fifth Circuit's threshold standard for "`constitutionally relevant' mitigating evidence, that is, evidence of a `uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,' and evidence that `the criminal act was attributable to this severe permanent condition.'" Our rejection of that threshold test was central to our decision to reverse in We held that "[t]he Fifth Circuit's test has no foundation in the decisions of this Court. Neither Penry nor its progeny screened mitigating evidence *44 for `constitutional relevance' before considering whether the jury instructions comported with the Eighth Amendment." Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a "low threshold for relevance," which is satisfied by "`"evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value."'" -28 ). The Court of Criminal Appeals relied on precisely the same "screening |
per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | Court of Criminal Appeals relied on precisely the same "screening test" we held constitutionally inadequate in )). Employing this test, the court concluded that petitioner's low Q and placement in special-education classes were irrelevant because they did not demonstrate that he suffered from a "severe disability." But, as we explained in "[e]vidence of significantly impaired intellectual functioning is obviously evidence that `might serve as a basis for a sentence less than death.'" ). There is no question that a jury might well have considered petitioner's Q scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death. ndeed, we have held that a defendant's Q score of 79, a score slightly higher than petitioner's, constitutes relevant mitigation evidence. See 39 U.S. 10, 3 ; cf. *4 The state court also held that petitioner had offered "no evidence of any link or nexus between his troubled childhood or his limited mental abilities and this capital murder." We rejected the Fifth Circuit's "nexus" requirement in (noting that none of our prior opinions "suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered" and holding that the jury must be allowed the opportunity to consider Penry evidence even if the defendant cannot establish "a nexus to the crime"). That petitioner's evidence was relevant for mitigation purposes is plain under our precedents, even those predating See, e. g., Penry -322; 01 U.S. 808, ; ; 4 U.S. 104, The state court, however, erroneously relied on a test we never countenanced and now have unequivocally rejected. We therefore hold that the state court "assessed [petitioner's legal] claim under an improper legal standard." Because petitioner's proffered evidence was relevant, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence. Whether the "nullification instruction" satisfied that charge is the question to which we now turn. The Court of Criminal Appeals held that even if petitioner did proffer relevant mitigation evidence, the supplemental "nullification instruction" provided to the jury adequately allowed the jury to give effect to that evidence. The court found it significant that the supplemental instruction in this case "told the jury that it `shall' consider all mitigating evidence, even evidence unrelated to the special issues, [and] it also told the jury how to answer the special issues to give effect to that mitigation evidence." 132 S. W. *46 3d, at 416. The court also concluded that the nullification instruction |
per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | at 416. The court also concluded that the nullification instruction made it clear to the jury that a "No" answer was required if it "believed that the death penalty was not warranted because of the mitigating circumstances." bid. n Penry we held that "the key under Penry is that the jury be able to `consider and give effect to [a defendant's mitigation] evidence in imposing sentence.'" 32 U.S., (quoting Penry ); see 32 U.S., (quoting 09 U. S., at ("`[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances'" (emphasis in Johnson))). We explained at length why the supplemental instruction employed by the courts did not provide the jury with an adequate vehicle for expressing a "reasoned moral response" to all of the evidence relevant to the defendant's culpability. 32 U.S., at 796. Although there are some distinctions between the Penry supplemental instruction and the instruction petitioner's jury received, those distinctions are constitutionally insignificant. Penry identified a broad and intractable problem a problem that the state court ignored here inherent in any requirement that the jury nullify special issues contained within a verdict form. "We generally presume that jurors follow their instructions. Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry's mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. ndeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a `"true verdict."' *47 "The mechanism created by the supplemental instruction thus inserted `an element of capriciousness' into the sentencing decision, `making the jurors' power to avoid the death penalty dependent on their willingness' to elevate the supplemental instruction over the verdict form instructions. There is, at the very least, `a reasonable likelihood that the jury applied the challenged instruction in a way that prevent[ed] the consideration' of Penry's mental retardation and childhood abuse. The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence." t is certainly true that the mandatory aspect of the nullification instruction made petitioner's instruction distinct from Penry's. ndeed, the "shall" command in the nullification instruction resolved the ambiguity inherent in the Penry instruction, |
per_curiam | 2,004 | 200 | per_curiam | Smith v. Texas | https://www.courtlistener.com/opinion/137727/smith-v-texas/ | nullification instruction resolved the ambiguity inherent in the Penry instruction, which we held was either a nullification instruction or an instruction that "`shackled and confined'" Penry's mitigating evidence within the scope of the impermissibly narrow special issues. That being said, the clearer instruction given to petitioner's jury did not resolve the ethical problem at 46 and this page.[4] To the contrary, the mandatory language in the *48 charge could possibly have intensified the dilemma faced by ethical jurors. Just as in Penry petitioner's jury was required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. And just as in Penry the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented.[] Even if we were to assume that the jurors could easily and effectively have comprehended an orally delivered instruction directing them to disregard, in certain limited circumstances, a mandatory written instruction given at a later occasion, that would not change the fact that the "jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence." Penry 32 U. S., at 801. There is no principled distinction, for Eighth Amendment purposes, between the instruction given to petitioner's jury and the instruction in Penry Petitioner's evidence was relevant mitigation evidence for the jury under and Penry We therefore hold that the nullification instruction was constitutionally inadequate under Penry The judgment of the Court of Criminal Appeals is reversed, *49 and the case is remanded for further proceedings not inconsistent with this opinion. t is so ordered. |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | Five years ago, this Court rejected the position of the Army Corps of Engineers on the scope of its authority to regulate wetlands under the Clean Water Act, as amended, 33 US C 1 et seq Solid Waste Agency of Northern Cook The Corps had taken the view that its authority was essentially limitless; this Court explained that such a boundless view was inconsistent with the limiting terms Congress had used in the Act In response to the decision, the Corps and the Environmental Protection Agency (EPA) initiated a rule-making to consider "issues associated with the scope of waters that are subject to the Clean Water Act (CWA), in light of the U S Supreme Court decision in []" 68 * The "goal of the agencies" was "to develop proposed regulations that will further the public interest by clarifying what waters are subject to CWA jurisdiction and affording full protection to these waters through an appropriate focus of Federal and State resources consistent with the CWA" Agencies delegated rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer See Chevron U S A Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority The proposed rulemaking went nowhere Rather than refining its view of its authority in light of our decision in and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power The upshot today is another defeat for the agency It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act Lower courts and regulated entities will now have to feel their way on a case-by-case basis This situation is certainly not unprecedented See What is unusual in this instance, perhaps, is how readily the situation could have been avoided[*] *759 JUSTICE KENNEDY, concurring in the judgment These consolidated cases require the Court to decide whether the term "navigable waters" in the Clean Water Act extends to wetlands that do not contain and are not adjacent to waters that are navigable in fact In Solid Waste Agency of Northern Cook the Court held, under the circumstances presented there, that to constitute "`navigable waters'" under the Act, a |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | there, that to constitute "`navigable waters'" under the Act, a water or wetland must possess a "significant nexus" to waters that are or were navigable in fact or that could reasonably be so made In the instant cases neither the plurality opinion nor the dissent by Justice Stevens chooses to apply this test; and though the Court of Appeals recognized the test's applicability, it did not consider all the factors necessary to determine whether the lands in question had, or did not have, the requisite nexus In my view the cases ought to be remanded to the Court of Appeals for proper consideration of the nexus requirement I Although both the plurality opinion and the dissent by JUSTICE STEVENS (hereinafter the dissent) discuss the background of these cases in some detail, a further discussion of the relevant statutes, regulations, and facts may clarify the analysis suggested here A The "objective" of the Clean Water Act (or Act) is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" 33 US C 1(a) To *760 that end, the statute, among other things, prohibits "the discharge of any pollutant by any person" except as provided in the Act 1311(a) As relevant here, the term "discharge of a pollutant" means "any addition of any pollutant to navigable waters from any point source" 1362(12) The term "pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water" 1362(6) The Secretary of the Army, acting through the Chief of Engineers of the Army Corps of Engineers, may issue permits for "discharge of dredged or fill material into the navigable waters at specified disposal sites" 1344(a), (c), (d); but see 1344(f) (categorically exempting certain forms of "discharge of dredged or fill material" from regulation under 1311(a)) Pursuant to 1344(g), States with qualifying programs may assume certain aspects of the Corps' permitting responsibility Apart from dredged or fill material, pollutant discharges require a permit from the Environmental Protection Agency (EPA), which also oversees the Corps' (and qualifying States') permitting decisions See 1311(a), 1342(a), 1344(c) Discharge of pollutants without an appropriate permit may result in civil or criminal liability See 1319 The statutory term to be interpreted and applied in the two instant cases is the term "navigable waters" The outcome turns on whether that phrase reasonably describes certain Michigan wetlands the Corps seeks to regulate Under the Act "[t]he term `navigable waters' means the waters |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | Under the Act "[t]he term `navigable waters' means the waters of the United States, including the territorial seas" 1362(7) In a regulation the Corps has construed the term "waters of the United States" to include not only waters susceptible to use in interstate commercethe traditional understanding of the term "navigable waters of the United States," see, e g, United States v Appalachian Elec Co, 311 U S *761 377, 406-408 (1940); The Daniel Ball, but also tributaries of those waters and, of particular relevance here, wetlands adjacent to those waters or their tributaries 33 CFR 3283(a)(1), (5), (7) The Corps views tributaries as within its jurisdiction if they carry a perceptible "ordinary high water mark" 3284(c); (2000) An ordinary high-water mark is a "line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas" 33 CFR 3283(e) Contrary to the plurality's description, ante, at 722, 734, wetlands are not simply moist patches of earth They are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions Wetlands generally include swamps, marshes, bogs, and similar areas" 3283(b) The Corps' Wetlands Delineation Manual, including over 100 pages of technical guidance for Corps officers, interprets this definition of wetlands to require: (1) prevalence of plant species typically adapted to saturated soil conditions, determined in accordance with the United States Fish and Wildlife Service's National List of Plant Species that Occur in Wetlands; (2) hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient time during the growing season to become anaerobic, or lacking in oxygen, in the upper part; and (3) wetland hydrology, a term generally requiring continuous inundation or saturation to the surface during at least five percent of the growing season in most years See Wetlands Research Program Technical Report Y-87-1 (online edition), pp 12-34 (Jan 1987), http://wwwsajusace *762 armymil/permit/documents/87manualpdf (all Internet materials as visited June 2006, and available in Clerk of Court's case file) Under the Corps' regulations, wetlands are adjacent to tributaries, and thus covered by the Act, even if they are "separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like" 3283(c) |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | barriers, natural river berms, beach dunes and the like" 3283(c) B The first consolidated case before the Court, Rapanos v United States, No 04-1034, relates to a civil enforcement action initiated by the United States in the United States District Court for the Eastern District of Michigan against the owners of three land parcels near Midland, Michigan The first parcel, known as the Salzburg site, consists of roughly 230 acres The District Court, applying the Corps' definition of wetlands, found based on expert testimony that the Salzburg site included 28 acres of wetlands The District Court further found that "the Salzburg wetlands have a surface water connection to tributaries of the Kawkawlin River which, in turn, flows into the Saginaw River and ultimately into Lake Huron" App to Pet for Cert B11 Water from the site evidently spills into the Hoppler Drain, located just north of the property, which carries water into the Hoppler Creek and thence into the Kawkawlin River, which is navigable A state official testified that he observed carp spawning in a ditch just north of the property, indicating a direct surface-water connection from the ditch to the Saginaw Bay of Lake Huron The second parcel, known as the Hines Road site, consists of 275 acres, which the District Court found included 64 acres of wetlands The court found that the wetlands have a surface-water connection to the Rose Drain, which carries water into the Tittabawassee River, a navigable waterway The final parcel, called the Pine River site, consists of some 200 acres The District Court found that 49 acres were wetlands *763 and that a surface-water connection linked the wetlands to the nearby Pine River, which flows into Lake Huron At all relevant times, John Rapanos owned the Salzburg site; a company he controlled owned the Hines Road site; and Rapanos' wife and a company she controlled (possibly in connection with another entity) owned the Pine River site All these parties are petitioners here In December 1988, Mr Rapanos, hoping to construct a shopping center, asked the Michigan Department of Natural Resources to inspect the Salzburg site A state official informed Rapanos that while the site likely included regulated wetlands, Rapanos could proceed with the project if the wetlands were delineated (that is, identified and preserved) or if a permit were obtained Pursuing the delineation option, Rapanos hired a wetlands consultant to survey the property The results evidently displeased Rapanos: Informed that the site included between 48 and 58 acres of wetlands, Rapanos allegedly threatened to "destroy" the consultant unless he eradicated all traces of his |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | "destroy" the consultant unless he eradicated all traces of his report Rapanos then ordered $350,000-worth of earthmoving and landclearing work that filled in 22 of the 64 wetlands acres on the Salzburg site He did so without a permit and despite receiving cease-and-desist orders from state officials and the EPA At the Hines Road and Pine River sites, construction workagain conducted in violation of state and federal compliance orders altered an additional and 15 wetlands acres, respectively The Federal Government brought criminal charges against Rapanos In the suit at issue here, however, the United States alleged civil violations of the Clean Water Act against all the Rapanos petitioners Specifically, the Government claimed that petitioners discharged fill into jurisdictional wetlands, failed to respond to requests for information, and ignored administrative compliance orders See 33 US C 1311(a), 1(a), 1319(a) After a 13-day bench trial, the District Court made the findings noted and, on that basis, upheld the Corps' jurisdiction over wetlands on the *764 three parcels On the merits the court ruled in the Government's favor, finding that violations occurred at all three sites As to two other sites, however, the court rejected the Corps' claim to jurisdiction, holding that the Government had failed to carry its burden of proving the existence of wetlands under the three-part regulatory definition (These two parcels are no longer at issue) The United States Court of Appeals for the Sixth Circuit affirmed This Court granted certiorari to consider the Corps' jurisdiction over wetlands on the Salzburg, Hines Road, and Pine River sites The second consolidated case, Carabell, No 04-1384, involves a parcel shaped like a right triangle and consisting of some 196 acres, 159 of which are forested wetlands The property is located roughly one mile from Lake St Clair, a 430-squaremile lake located between Michigan and Canada that is popular for boating and fishing and produces some 48 percent of the sport fish caught in the Great Lakes, see Brief for Macomb County, Michigan, as Amicus Curiae 2 The right-angle corner of the property is located to the northwest The hypotenuse, which runs from northeast to southwest, lies alongside a man-made berm that separates the property from a ditch At least under current conditionsthat is, without the deposit of fill in the wetlands that the landowners proposethe berm ordinarily, if not always, blocks surface-water flow from the wetlands into the ditch But cf App 186a (administrative hearing testimony by consultant for Carabells indicating "you would start seeing some overflow" in a "ten year storm") Near the northeast corner of the property, the ditch connects |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | Near the northeast corner of the property, the ditch connects with the Sutherland-Oemig Drain, which carries water continuously throughout the year and empties into Auvase Creek The in turn empties into Lake St Clair At its southwest end, the ditch connects to other ditches that empty into the Auvase Creek and thence into Lake St Clair *765 In 1993 petitioners Keith and June Carabell sought a permit from the Michigan Department of Environmental Quality (MDEQ), which has assumed permitting functions of the Corps pursuant to 1344(g) Petitioners hoped to fill in the wetlands and construct 130 condominium units Although the MDEQ denied the permit, a State Administrative Law Judge directed the agency to approve an alternative plan, proposed by the Carabells, that involved the construction of 112 units This proposal called for filling in 122 acres of the property while creating retention ponds on 374 acres Because the EPA had objected to the permit, jurisdiction over the case transferred to the Corps See 1344(j) The Corps' district office concluded that the Carabells' property "provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality in the Sutherland-Oemig Drain, Auvase Creek, and Lake St Clair" at 127a The district office denied the permit, and the Corps upheld the denial in an administrative appeal The Carabells, challenging both the Corps' jurisdiction and the merits of the permit denial, sought judicial review pursuant to the Administrative Procedure Act, 5 US C 706(2)(A) The United States District Court for the Eastern District of Michigan granted summary judgment to the Corps, and the United States Court of Appeals for the Sixth Circuit affirmed, This Court granted certiorari to consider the jurisdictional question II Twice before the Court has construed the term "navigable waters" in the Clean Water Act In United the Court upheld the Corps' jurisdiction over wetlands adjacent to navigable-in-fact waterways The property in Riverside like the wetlands in the Carabell case now before the Court, was located roughly one mile from *766 Lake St Clair, see United though in that case, unlike Carabell, the lands at issue formed part of a wetland that directly abutted a navigable-in-fact In regulatory provisions that remain in effect, the Corps had concluded that wetlands perform important functions such as filtering and purifying water draining into adjacent water 33 CFR 3204(b)(2)(vii) slowing the flow of runoff into lakes, rivers, and streams so as to prevent flooding and erosion, 3204(b)(2)(iv), (v), and providing critical habitat for aquatic animal species, 3204(b)(2)(i) -135 Recognizing that "[a]n agency's construction of a statute it |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | -135 Recognizing that "[a]n agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress," id, at 131 and Chevron U S A ), the Court held that "the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act," The Court reserved, however, the question of the Corps' authority to regulate wetlands other than those adjacent to open waters See id, at 131-132, n 8 In the Court considered the validity of the Corps' jurisdiction over ponds and mudflats that were isolated in the sense of being unconnected to other waters covered by the Act 531 US, at 1 The property at issue was an abandoned sand and gravel pit mining operation where "remnant excavation trenches" had "evolv[ed] into a scattering of permanent and seasonal ponds" Asserting jurisdiction pursuant to a regulation called the "Migratory Bird Rule," the Corps argued that these isolated ponds were "waters of the United States" (and thus "navigable *767 waters" under the Act) because they were used as habitat by migratory birds The Court rejected this theory "It was the significant nexus between wetlands and `navigable waters,'" the Court held, "that informed our reading of the [Act] in Riverside Homes" Because such a nexus was lacking with respect to isolated ponds, the Court held that the plain text of the statute did not permit the Corps' action Riverside and establish the framework for the inquiry in the cases now before the Court: Do the Corps' regulations, as applied to the wetlands in Carabell and the three wetlands parcels in Rapanos, constitute a reasonable interpretation of "navigable waters" as in Riverside or an invalid construction as in ? Taken together these cases establish that in some instances, as exemplified by Riverside the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a "navigable water" under the Act In other instances, as exemplified by there may be little or no connection Absent a significant nexus, jurisdiction under the Act is lacking Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary A The plurality's opinion begins from a correct premise As the plurality points out, and as Riverside holds, in enacting the Clean Water Act Congress intended to regulate at |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | enacting the Clean Water Act Congress intended to regulate at least some waters that are not navigable in the traditional sense Ante, at 731; Riverside ; see also This conclusion is supported by "the evident breadth of congressional concern for protection of water quality and aquatic ecosystems" Riverside ; see also Milwaukee v Illinois, 451 US 304, It is further compelled by statutory text, for the text is explicit in extending the coverage of the Act to some nonnavigable waters In a provision allowing States to assume some regulatory functions of the Corps (an option Michigan has exercised), the Act limits States to issuing permits for: "the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their ordinary high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto) within its jurisdiction" 33 US C 1344(g)(1) Were there no Clean Water Act "navigable waters" apart from waters "presently used" or "susceptible to use" in interstate commerce, the "other than" clause, which begins the long parenthetical statement, would overtake the delegation of authority the provision makes at the outset Congress, it follows, must have intended a broader meaning for navigable waters The mention of wetlands in the "other than" clause, moreover, makes plain that at least some wetlands fall within the scope of the term "navigable waters" See Riverside and n 11 From this reasonable beginning the plurality proceeds to impose two limitations on the Act; but these limitations, it is here submitted, are without support in the language and purposes of the Act or in our cases interpreting it First, because the dictionary defines "waters" to mean "water `[a]s found in streams and forming geographical features such as oceans, rivers, [and] lakes,' or `the flowing or moving masses, as of waves or floods, making up such streams or *769'" ante, at 732 (quoting Webster's New International Dictionary 2882 (2d ed 1954) (hereinafter Webster's Second)), the plurality would conclude that the phrase "navigable waters" permits Corps and EPA jurisdiction only over "relatively permanent, standing or flowing of water," ante, at 732a category that in the plurality's view includes "seasonal" rivers, that is, rivers that carry water continuously except during "dry months," but not intermittent or ephemeral streams, ante, at 732-734, and |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | but not intermittent or ephemeral streams, ante, at 732-734, and n 5 Second, the plurality asserts that wetlands fall within the Act only if they bear "a continuous surface connection to that are `waters of the United States' in their own right"waters, that is, that satisfy the plurality's requirement of permanent standing water or continuous flow Ante, at 742 The plurality's first requirementpermanent standing water or continuous flow, at least for a period of "some months," ante, at 732-733, and n 5makes little practical sense in a statute concerned with downstream water quality The merest trickle, if continuous, would count as a "water" subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not Though the plurality seems to presume that such irregular flows are too insignificant to be of concern in a statute focused on "waters," that may not always be true Areas in the western parts of the Nation provide some examples The Los Angeles River, for instance, ordinarily carries only a trickle of water and often looks more like a dry roadway than a river See, e g, B The Los Angeles River: Its Life, Death, and Possible Rebirth 1-2 (1999); Martinez, City of Angels' Signature River Tapped for Rebirth, Chicago Tribune, Apr 10, 2005, section 1, p 8 Yet it periodically releases water volumes so powerful and destructive that it has been encased in concrete and steel over a length of some 50 miles See Though this particular waterway might satisfy the plurality's test, it is illustrative of what often-dry watercourses *770 can become when rain waters flow See, e g, County of Los Angeles Dept of Public Works, Water Resources Division: 2002- Hydrologic Report, Runoff, Daily Discharge, F377-R BOUQUET CANYON CREEK at Urbandale Avenue 11107860 Bouquet Creek Near Saugus, CA, http://ladpworg/wrd/report/0203/runoff/dischargecfm To be sure, Congress could draw a line to exclude irregular waterways, but nothing in the statute suggests it has done so Quite the opposite, a full reading of the dictionary definition precludes the plurality's emphasis on permanence: The term "waters" may mean "flood or inundation," Webster's Second 2882, events that are impermanent by definition Thus, although of course the Act's use of the adjective "navigable" indicates a focus on waterways rather than floods, Congress' use of "waters" instead of "water," ante, at 732, does not necessarily carry the connotation of "relatively permanent, standing or flowing of water," ibid (And contrary to the plurality's suggestion, ante, at 732, n 4, there is no indication in the dictionary that the "`flood or inundation'" definition is limited to poetry) In any |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | "`flood or inundation'" definition is limited to poetry) In any event, even granting the plurality's preferred definitionthat "waters" means "water `[a]s found in streams and forming geographical features such as oceans, rivers, [and] lakes,'" ante, at 732 (quoting Webster's Second 2882)the dissent is correct to observe that an intermittent flow can constitute a stream, in the sense of "`[a] current or course of water or other fluid, flowing on the earth,'" ante, at 733, n 6 (quoting Webster's Second 2493), while it is flowing See post, at 801 ) It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams *771 Apart from the dictionary, the plurality invokes Riverside to support its interpretation that the term "waters" is so confined, but this reliance is misplaced To be sure, the Court there compared wetlands to "rivers, streams, and other hydrographic features more conventionally identifiable as `waters'" It is quite a stretch to claim, however, that this mention of hydrographic features "echoe[s]" the dictionary's reference to "`geographical features such as oceans, rivers, [and] lakes'" Ante, at 735 (quoting Webster's Second 2882) In fact the Riverside opinion does not cite the dictionary definition on which the plurality relies, and the phrase "hydrographic features" could just as well refer to intermittent streams carrying substantial flow to navigable waters See Webster's Second 1221 (defining "hydrography" as "[t]he description and study of seas, lakes, rivers, and other waters; specif[ically] [t]he measurement of flow and investigation of the behavior of streams, esp[ecially] with reference to the control or utilization of their waters") Also incorrect is the plurality's attempt to draw support from the statutory definition of "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged" 33 US C 1362(14) This definition is central to the Act's regulatory structure, for the term "discharge of a pollutant" is defined in relevant part to mean "any addition of any pollutant to navigable waters from any point source," 1362(12) Interpreting the point-source definition, the plurality presumes, first, that the point-source examples describe "watercourses through which intermittent waters typically flow," and second, that point sources and navigable waters are "separate and distinct categories" Ante, at 735-736 From this the *772 plurality concludes, by a sort of negative inference, that navigable waters may not be intermittent The conclusion is unsound Nothing in the point-source definition requires an intermittent flow Polluted water |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | in the point-source definition requires an intermittent flow Polluted water could flow night and day from a pipe, channel, or conduit and yet still qualify as a point source; any contrary conclusion would likely exclude, among other things, effluent streams from sewage treatment plants As a result, even were the statute read to require continuity of flow for navigable waters, certain water could conceivably constitute both a point source and a water At any rate, as the dissent observes, the fact that point sources may carry continuous flow undermines the plurality's conclusion that covered "waters" under the Act may not be discontinuous See post, at 802 The plurality's second limitationexclusion of wetlands lacking a continuous surface connection to other jurisdictional watersis also unpersuasive To begin with, the plurality is wrong to suggest that wetlands are "indistinguishable" from waters to which they bear a surface connection Ante, at 755 Even if the precise boundary may be imprecise, a bog or swamp is different from a river The question is what circumstances permit a bog, swamp, or other nonnavigable wetland to constitute a "navigable water" under the Actas 1344(g)(1), if nothing else, indicates is sometimes possible, see Riverside addressed that question and its answer is inconsistent with the plurality's theory There, in upholding the Corps' authority to regulate "wetlands adjacent to other of water over which the Corps has jurisdiction," the Court deemed it irrelevant whether "the moisture creating the wetlands find[s] its source in the adjacent of water" 474 US, The Court further observed that adjacency could serve as a valid basis for regulation even as to "wetlands that are not significantly intertwined with the ecosystem of adjacent waterways" n 9 "If it is reasonable," the Court explained, "for the Corps to conclude that in the majority *773 of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand" The Court in Riverside did note, it is true, the difficulty of defining where "water ends and land begins," id, and the Court cited that problem as one reason for deferring to the Corps' view that adjacent wetlands could constitute waters Given, however, the further recognition in Riverside that an overinclusive definition is permissible even when it reaches wetlands holding moisture disconnected from adjacent water id, and n 9, Riverside 's observations about the difficulty of defining the water's edge cannot be taken to establish that when a clear boundary is evident, wetlands beyond the boundary fall outside the Corps' jurisdiction For the same reason Riverside also cannot be read as rejecting only the proposition, |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | Riverside also cannot be read as rejecting only the proposition, accepted by the Court of Appeals in that case, that wetlands covered by the Act must contain moisture originating in neighboring waterways See id, at 134 Since the Court of Appeals had accepted that theory, the Court naturally addressed it Yet to view the decision's reasoning as limited to that issuean interpretation the plurality urges here, ante, at 751, n 13 would again overlook the opinion's broader focus on wetlands' "significant effects on water quality and the aquatic ecosystem," 474 US, n 9 In any event, even were this reading of Riverside correct, it would offer no support for the plurality's proposed requirement of a "continuous surface connection," ante, at 742 The Court in Riverside rejected the proposition that origination in flooding was necessary for jurisdiction over wetlands It did not suggest that a flood-based origin would not support jurisdiction; indeed, it presumed the opposite See Needless to say, a continuous connection *774 is not necessary for moisture in wetlands to result from floodingthe connection might well exist only during floods likewise, does not support the plurality's surface-connection requirement 's holding that "nonnavigable, isolated, intrastate waters," 531 US, at 1, are not "navigable waters" is not an explicit or implicit overruling of Riverside 's approval of adjacency as a factor in determining the Corps' jurisdiction In rejecting the Corps' claimed authority over the isolated ponds in the Court distinguished adjacent nonnavigable waters such as the wetlands addressed in Riverside 531 U S, 0-1 As Riverside recognizes, the Corps' adjacency standard is reasonable in some of its applications Indeed, the Corps' view draws support from the structure of the Act, while the plurality's surface-water-connection requirement does not As discussed above, the Act's prohibition on the discharge of pollutants into navigable waters, 33 US C 1311(a), covers both the discharge of toxic materials such as sewage, chemical waste, biological material, and radioactive material and the discharge of dredged spoil, rock, sand, cellar dirt, and the like All these substances are defined as pollutants whose discharge into navigable waters violates the Act 1311(a), 1362(6), (12) One reason for the parallel treatment may be that the discharge of fill material can impair downstream water quality The plurality argues otherwise, asserting that dredged or fill material "does not normally wash downstream" Ante, at 744 As the dissent points out, this proposition seems questionable as an empirical matter See post, at 806-807 It seems plausible that new or loose fill, not anchored by grass or roots from other vegetation, could travel downstream through waterways adjacent to |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | from other vegetation, could travel downstream through waterways adjacent to a wetland; at the least this is a factual possibility that the Corps' experts can better assess than can the plurality Silt, whether from natural or human sources, is a major factor *775 in aquatic environments, and it may clog waterways, alter ecosystems, and limit the useful life of dams See, e g, Fountain, Unloved, But Not Unbuilt, N Y Times, June 5, 2005, section 4, p 3, col 1; DePalma, Rebuilding a River Upstate, For the Love of a Tiny Mussel, N Y Times, Apr 26, section B, p 1, col 2; MacDougall, Damage Can Be Irreversible, Los Angeles Times, June 19, 1987, pt 1, p 10, col 4 Even granting, however, the plurality's assumption that fill material will stay put, Congress' parallel treatment of fill material and toxic pollution may serve another purpose As the Court noted in Riverside "the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent of water, 33 CFR 3204(b)(2)(vii) and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see 3204(b)(2)(iv) and (v)" Where wetlands perform these filtering and runoff-control functions, filling them may increase downstream pollution, much as a discharge of toxic pollutants would Not only will dirty water no longer be stored and filtered but also the act of filling and draining itself may cause the release of nutrients, toxins, and pathogens that were trapped, neutralized, and perhaps amenable to filtering or detoxification in the wetlands See U S Congress, Office of Technology Assessment, Wetlands: Their Use and Regulation, OTA-O-206, pp 43, 48-52 http://govinfolibraryuntedu/ota/ OTA_4/DATA//8433pdf (hereinafter OTA) In many cases, moreover, filling in wetlands separated from another water by a berm can mean that floodwater, impurities, or runoff that would have been stored or contained in the wetlands will instead flow out to major waterways With these concerns in mind, the Corps' definition of adjacency is a reasonable one, for it may be the absence of an interchange of waters prior to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme *776 In sum the plurality's opinion is inconsistent with the Act's text, structure, and purpose As a fallback the plurality suggests that avoidance canons would compel its reading even if the text were unclear Ante, at 737-738 In as one reason for rejecting the Corps' assertion of jurisdiction over the isolated ponds at issue there, the Court observed that this "application of [the Corps'] regulations" would raise significant |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | that this "application of [the Corps'] regulations" would raise significant questions of Commerce Clause authority and encroach on traditional state land-use regulation 531 US, at 4 As observed, ibid, and as the plurality points out here, ante, at 737, the Act states that "[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use of land and water resources," 33 US C 1(b) The Court in cited this provision as evidence that a clear statement supporting jurisdiction in applications raising constitutional and federalism difficulties was lacking 531 US, at 4 The concerns addressed in do not support the plurality's interpretation of the Act In by interpreting the Act to require a significant nexus with navigable waters, the Court avoided applicationsthose involving waters without a significant nexusthat appeared likely, as a category, to raise constitutional difficulties and federalism concerns Here, in contrast, the plurality's interpretation does not fit the avoidance concerns it raises On the one hand, when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waterseven though such navigable waters were traditionally subject to federal authority On the other hand, by saying the Act covers wetlands (however remote) possessing a surface-water connection with a continuously flowing stream (however small), the plurality's reading would permit applications of the statute as far from traditional federal authority as are the waters it deems beyond *777 the statute's reach Even assuming, then, that federal regulation of remote wetlands and nonnavigable waterways would raise a difficult Comerce Clause issue notwithstanding those waters' aggregate effects on national water quality, but cf Wickard v Filburn, 3 US 111 ; see also infra, at 782-783, the plurality's reading is not responsive to this concern As for States' "responsibilities and rights," 1(b), it is noteworthy that 33 States plus the District of Columbia have filed an amici brief in this litigation asserting that the Clean Water Act is important to their own water policies See Brief for State of New York et al 1-3 These amici note, among other things, that the Act protects downstream States from out-of-state pollution that they cannot themselves regulate It bears mention also that the plurality's overall tone and approachfrom the characterization of acres of wetlands destruction as "backfilling wet fields," ante, at 721, to the rejection of Corps authority over "man-made drainage ditches" and "dry arroyos" without regard to how much water they periodically carry, ante, at 734, to the suggestion, seemingly contrary to Congress' judgment, |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | at 734, to the suggestion, seemingly contrary to Congress' judgment, that discharge of fill material is inconsequential for adjacent waterways, ante, at 744, and n 11seems unduly dismissive of the interests asserted by the United States in these cases Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular To give just one example, amici here have noted that nutrientrich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, "dead zone" in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey Brief for Association of State Wetland Managers et al 21-23; Brief for Environmental Law Institute 23 Scientific evidence indicates that wetlands play a critical role in controlling and filtering runoff See, e g, OTA 43, 48-52; R Tiner, In Search of Swampland: A Wetland Sourcebook and Field Guide 93-95 ; Whitmire & Hamilton, Rapid Removal *778 of Nitrate and Sulfate in Freshwater Wetland Sediments, 34 J Env Quality 2062 It is true, as the plurality indicates, that environmental concerns provide no reason to disregard limits in the statutory text, ante, at 745-746, but in my view the plurality's opinion is not a correct reading of the text The limits the plurality would impose, moreover, give insufficient deference to Congress' purposes in enacting the Clean Water Act and to the authority of the Executive to implement that statutory mandate Finally, it should go without saying that because the plurality presents its interpretation of the Act as the only permissible reading of the plain text, ante, at 739, 742, the Corps would lack discretion, under the plurality's theory, to adopt contrary regulations The Chief Justice suggests that if the Corps and EPA had issued new regulations after they would have "enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority" and thus could have avoided litigation of the issues we address today Ante, at 758 (concurring opinion) That would not necessarily be true under the opinion The Chief Justice has joined New rulemaking could have averted the disagreement here only if the Corps had anticipated the unprecedented reading of the Act that the plurality advances B While the plurality reads nonexistent requirements into the Act, the dissent reads a central requirement out namely, the requirement that the word "navigable" in "navigable waters" be given some importance Although the Court has held that the statute's language invokes Congress' traditional authority over waters navigable in fact or susceptible of being made so, 531 U S, |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | fact or susceptible of being made so, 531 U S, (citing Appalachian 311 U S, at 407-408), the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters The deference *779 owed to the Corps' interpretation of the statute does not extend so far Congress' choice of words creates difficulties, for the Act contemplates regulation of certain "navigable waters" that are not in fact navigable Nevertheless, the word "navigable" in the Act must be given some effect See Thus, in the Court rejected the Corps' assertion of jurisdiction over isolated ponds and mudflats bearing no evident connection to navigable-in-fact waters And in Riverside while the Court indicated that "the term `navigable' as used in the Act is of limited import," 474 US, it relied, in upholding jurisdiction, on the Corps' judgment that "wetlands adjacent to lakes, rivers, streams, and other of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent of water," id, The implication, of course, was that wetlands' status as "integral parts of the aquatic environment"that is, their significant nexus with navigable waterswas what established the Corps' jurisdiction over them as waters of the United States Consistent with and Riverside and with the need to give the term "navigable" some meaning, the Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense The required nexus must be assessed in terms of the statute's goals and purposes Congress enacted the law to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 US C 1(a), and it pursued that objective by restricting dumping and filling in "navigable waters," 1311(a), 1362(12) With respect to wetlands, the rationale for Clean Water Act regulation is, as the Corps has recognized, that wetlands can perform critical functions related to the integrity of other watersfunctions such as pollutant trapping, flood control, and runoff storage 33 *780 CFR 3204(b)(2) Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase "navigable waters," if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as "navigable" When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term "navigable waters" Although the dissent acknowledges that |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | the statutory term "navigable waters" Although the dissent acknowledges that wetlands' ecological functions vis-à-vis other covered waters are the basis for the Corps' regulation of them, post, at 796, it concludes that the ambiguity in the phrase "navigable waters" allows the Corps to construe the statute as reaching all "non-isolated wetlands," just as it construed the Act to reach the wetlands adjacent to navigable-in-fact waters in Riverside see post, at 796 This, though, seems incorrect The Corps' theory of jurisdiction in these consolidated casesadjacency to tributaries, however remote and insubstantialraises concerns that go beyond the holding of Riverside ; and so the Corps' assertion of jurisdiction cannot rest on that case As applied to wetlands adjacent to navigable-in-fact waters, the Corps' conclusive standard for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone That is the holding of Riverside Furthermore, although the Riverside Court reserved the question of the Corps' authority over "wetlands that are not adjacent to of open water," -132, n 8, and in any event addressed no factual situation other than wetlands adjacent to navigable-in-fact waters, it may well be the case that Riverside 's reasoningsupporting jurisdiction without any inquiry beyond adjacencycould apply equally to wetlands adjacent to certain major tributaries Through regulations *781 or adjudication, the Corps may choose to identify categories of tributaries that, due to their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations, are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters The Corps' existing standard for tributaries, however, provides no such assurance As noted the Corps deems a water a tributary if it feeds into a traditional navigable water (or a tributary thereof) and possesses an ordinary high-water mark, defined as a "line on the shore established by the fluctuations of water and indicated by [certain] physical characteristics," 3283(e) See This standard presumably provides a rough measure of the volume and regularity of flow Assuming it is subject to reasonably consistent application, but see U S General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO 04-297, pp 3-4 http://wwwgaogov/newitems/d04297pdf (noting variation in results among Corps district offices), it may well provide a reasonable measure of whether specific minor tributaries |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | well provide a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated waters to constitute "navigable waters" under the Act Yet the breadth of this standardwhich seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes toward itprecludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood Indeed, in many cases wetlands adjacent to tributaries covered by this standard might appear *782 little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope in Cf Leibowitz & Nadeau, Isolated Wetlands: State-of-the-Science and Future Directions, 23 Wetlands 663, 669 (noting that "`isolated' is generally a matter of degree") When the Corps seeks to regulate wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to establish its jurisdiction Absent more specific regulations, however, the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries Given the potential overbreadth of the Corps' regulations, this showing is necessary to avoid unreasonable applications of the statute Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region That issue, however, is neither raised by these facts nor addressed by any agency regulation that accommodates the nexus requirement outlined here This interpretation of the Act does not raise federalism or Commerce Clause concerns sufficient to support a presumption against its adoption To be sure, the significant-nexus requirement may not align perfectly with the traditional extent of federal authority Yet in most cases regulation of wetlands that are adjacent to tributaries and possess a significant nexus with navigable waters will raise no serious constitutional or federalism difficulty Cf Pierce County v Guillen, 537 US 129, ; Oklahoma ex rel Phillips v Guy F Atkinson Co, 313 US 508, ("[J]ust as control over the non-navigable parts of a river may be essential or desirable in the interests of the navigable portions, so may the key to flood control on a navigable stream be found in whole or in *783 part in flood control on its tributaries [T]he exercise of the granted power of Congress to regulate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce") As |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | activities and agencies which, though intrastate, affect that commerce") As explained moreover, and as exemplified by the significant-nexus test itself prevents problematic applications of the statute See ; 531 US, at 4 The possibility of legitimate Commerce Clause and federalism concerns in some circumstances does not require the adoption of an interpretation that departs in all cases from the Act's text and structure See Gonzales v Raich, 545 US 1, III In both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above Thus the end result in these cases and many others to be considered by the Corps may be the same as that suggested by the dissent, namely, that the Corps' assertion of jurisdiction is valid Given, however, that neither the agency nor the reviewing courts properly considered the issue, a remand is appropriate, in my view, for application of the controlling legal standard Rapanos As the dissent points out, in Rapanos, No 04-1034, an expert whom the District Court found "eminently qualified" and "highly credible," App to Pet for Cert B7, testified that the wetlands were providing "habitat, sediment trapping, nutrient recycling, and flood peak diminution, reduction flow water augmentation" 4 Tr 96 (Apr 5, 1999) Although the expert had "not studied the upstream drainage of these *784 sites" and thus could not assert that the wetlands were performing important pollutant-trapping functions, ibid, he did observe: "we have a situation in which the flood water attenuation in that water is held on the site in the wetland such that it does not add to flood peak By the same token it would have some additional water flowing into the rivers during the drier periods, thus, increasing the low water flow By the same token on all of the sites to the extent that they slow the flow of water off of the site they will also accumulate sediment and thus trap sediment and hold nutrients for use in those wetlands systems later in the season as well," id, In addition, in assessing the hydrology prong of the three-part wetlands test, see -762, the District Court made extensive findings regarding water tables and drainage on the parcels at issue In applying the Corps' jurisdictional regulations, the District Court found that each of the wetlands bore surface-water connections to tributaries of navigable-in-fact waters Much the same evidence should permit the establishment of a significant nexus with navigable-in-fact waters, particularly if supplemented by further evidence about the significance of the tributaries to which the wetlands are |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | the significance of the tributaries to which the wetlands are connected The Court of Appeals, however, though recognizing that under such a nexus was required for jurisdiction, held that a significant nexus "can be satisfied by the presence of a hydrologic connection" 376 F3d, at 639 Absent some measure of the significance of the connection for downstream water quality, this standard was too uncertain Under the analysis described mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters *785 as traditionally understood In my view this case should be remanded so that the District Court may reconsider the evidence in light of the appropriate standard See, e g, Pullman-Standard v Swint, 456 US 273, Carabell In Carabell, No 04-1384, the record also contains evidence bearing on the jurisdictional inquiry The Corps noted in deciding the administrative appeal that "[b]esides the effects on wildlife habitat and water quality, the [district office] also noted that the project would have a major, long-term detrimental effect on wetlands, flood retention, recreation and conservation and overall ecology," App 218a Similarly, in the district office's permit evaluation, Corps officers observed: "The proposed work would destroy/adversely impact an area that retains rainfall and forest nutrients and would replace it with a new source area for runoff pollutants Pollutants from this area may include lawn fertilizers, herbicides, pesticides, road salt, oil, and grease These pollutants would then runoff directly into the waterway Overall, the operation and use of the proposed activity would have a major, long term, negative impact on water quality The cumulative impacts of numerous such projects would be major and negative as the few remaining wetlands in the area are developed" at 97a-98a The Corps' evaluation further noted that by "eliminat[ing] the potential ability of the wetland to act as a sediment catch basin," the proposed project "would contribute to increased *786 runoff and accretion along the drain and further downstream in Auvase Creek" at 98a And it observed that increased runoff from the site would likely cause downstream areas to "see an increase in possible flooding magnitude and frequency" at 99a The conditional language in these assessments"potential ability," "possible flooding"could suggest an undue degree of speculation, and a reviewing court must identify substantial evidence supporting the Corps' claims, see 5 US C 706(2)(E) Nevertheless, the record does show that factors relevant to the jurisdictional inquiry have already been noted and considered As in Rapanos, though, the record gives little indication of the quantity and regularity of flow |
Justice Roberts | 2,006 | 0 | concurring | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | gives little indication of the quantity and regularity of flow in the adjacent tributariesa consideration that may be important in assessing the nexus Also, as in Rapanos, the legal standard applied to the facts was imprecise The Court of Appeals, considering the Carabell case after its Rapanos decision, framed the inquiry in terms of whether hydrologic connection is required to establish a significant nexus The court held that it is not, and that much of its holding is correct Given the role wetlands play in pollutant filtering, flood control, and runoff storage, it may well be the absence of hydrologic connection (in the sense of interchange of waters) that shows the wetlands' significance for the aquatic system In the administrative decision under review, however, the Corps based its jurisdiction solely on the wetlands' adjacency to the ditch opposite the berm on the property's edge As explained mere adjacency to a tributary of this sort is insufficient; a similar ditch could just as well be located many miles from any navigable-in-fact water and carry only insubstantial flow toward it A more specific inquiry, based on the significant-nexus standard, is therefore necessary Thus, a remand is again required to permit application of the appropriate legal standard See, e g, INS v Orlando Ventura, 537 US 12, ("Generally speaking, a court of appeals should remand *787 a case to an agency for decision of a matter that statutes place primarily in agency hands") * * * In these consolidated cases I would vacate the judgments of the Court of Appeals and remand for consideration whether the specific wetlands at issue possess a significant nexus with navigable waters |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | This case concerns the authority of a federal court to raise, on its own motion, a statute of limitations defense to a habeas corpus petition. After state prisoner Patrick Wood filed a federal habeas corpus petition, the State twice informed the U. S. District Court that it “[would] not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.” App. 70a; see at 87a. Thereafter, the District Court rejected Wood’s claims on the merits. On appeal, the Tenth Circuit directed the parties to brief the question whether Wood’s federal petition was timely. Post-briefing, the Court of Appeals affirmed the denial of Wood’s petition, but solely on the ground that it was untimely. Our precedent establishes that a court may consider a statute of limitations or other threshold bar the State failed to raise in answering a habeas petition. v. Greer, ; (statute of limitations defense). Does court discretion to take up timeliness hold when a State is aware of a limitations 2 WOOD v. MILYARD Opinion of the Court defense, and intelligently chooses not to rely on it in the court of first instance? The answer instructs is “no”: A court is not at liberty, we have cautioned, to bypass, override, or excuse a State’s deliberate waiver of a limita- tions at 210, n. 11. The Tenth Circuit, we accordingly hold, abused its discretion by resurrecting the limitations issue instead of reviewing the District Court’s disposition on the merits of Wood’s claims. I In the course of a 1986 robbery at a pizza shop in a Colorado town, the shop’s assistant manager was shot and killed. Petitioner Patrick Wood was identified as the per- petrator. At a bench trial in January 1987, Wood was convicted of murder, robbery, and menacing, and sen- tenced to life imprisonment. The Colorado Court of Ap- peals affirmed Wood’s convictions and sentence on direct appeal in May 1989, and the Colorado Supreme Court denied Wood’s petition for certiorari five months later. Wood did not ask this Court to review his conviction in the 90 days he had to do so. Wood then pursued postconviction relief, asserting con- stitutional infirmities in his trial, conviction, and sen- tence. Prior to the federal petition at issue here, which was filed in 2008, Wood, proceeding pro se, twice sought relief in state court. First, in 1995, he filed a motion to vacate his conviction and sentence pursuant to Colorado Rule of Criminal Procedure 35(c) (1984).1 He also asked the Colorado trial court to appoint counsel to aid him in pursuit of the motion. When some months passed with |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | in pursuit of the motion. When some months passed with no —————— 1 Colorado Rule of Criminal Procedure 35(c) (1984) provides, in rele- vant part: “[E]very person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the groun[d] [t]hat the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state.” Cite as: 566 U. S. (2012) 3 Opinion of the Court responsive action, Wood filed a request for a ruling on his motion and accompanying request for counsel. The state court then granted Wood’s plea for the appointment of counsel, but the record is completely blank on any further action regarding the 1995 motion. Second, Wood filed a new pro se motion for postconviction relief in Colorado court in 2004. On the first page of his second motion, he indicated that “[n]o other postconviction proceedings [had been] filed.” Record in No. 08–cv–00247 (D Colo.), Doc. 15–5 (Exh. E), p. 1. The state court denied Wood’s motion four days after receiving it. Wood filed a federal habeas petition in 2008, which the District Court initially dismissed as untimely. App. 41a– 46a. On reconsideration, the District Court vacated the dismissal and instructed the State to file a preanswer response “limited to addressing the affirmative defenses of timeliness and/or exhaustion of state court remedies.” 4a–65a. On timeliness, the State represented in its preanswer response: “Respondents will not challenge, but are not conceding, the timeliness of Wood’s [federal] habeas petition.” at 70a. Consistently, in its full an- swer to Wood’s federal petition, the State repeated: “Re- spondents are not challenging, but do not concede, the timeliness of the petition.” at 87a. Disposing of Wood’s petition, the District Court dis- missed certain claims for failure to exhaust state reme- dies, and denied on the merits Wood’s two remaining claims—one alleging a double jeopardy violation and one challenging the validity of Wood’s waiver of his Sixth Amendment right to a jury trial. at 96a–111a. On appeal, the Tenth Circuit ordered the parties to brief, along with the merits of Wood’s double jeopardy and Sixth Amendment claims, “the timeliness of Wood’s application for [federal habeas relief].” at 129a. After briefing, the Court of Appeals affirmed the denial of Wood’s petition without addressing the merits; instead, the Tenth Circuit 4 In so ruling, the Court of Appeals concluded it had author- ity to raise timeliness on its own motion. It further ruled that the State had not taken that issue off the table by |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | State had not taken that issue off the table by declining to interpose a statute of limitations defense in the District Court. We granted review, 564 U. S. (2011), to resolve two issues: first, whether a court of appeals has the author- ity to address the timeliness of a habeas petition on the court’s own initiative;2 second, assuming a court of appeals has such authority, whether the State’s representations to the District Court in this case nonetheless precluded the Tenth Circuit from considering the timeliness of Wood’s petition. II A Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner has one year to file a federal petition for habeas corpus relief, starting from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S. C. For a prisoner whose judgment became final before AEDPA was enacted, the one-year limitations period runs from the AEDPA’s effective date: April 24, 1996. See (CA10 2004). “The one-year clock is stopped, however, during the time the petitioner’s ‘properly filed’ application for state postconviction relief ‘is pending.’ ” 547 U. S., —————— 2 The Tenth Circuit’s conclusion that it had authority to raise an AEDPA statute of limitations defense sua sponte conflicts with the view of the Eighth Circuit. Compare (case below), with (CA8 2009) (“The discretion to consider the statute of limitations defense sua sponte does not extend to the appellate level.”). Cite as: 566 U. S. (2012) 5 Opinion of the Court 01 (quoting 28 U.S. C. The state judgment against Wood became final on direct review in early 1990. See Wood’s time for filing a federal petition therefore began to run on the date of AEDPA’s enactment, April 24, 1996, and expired on April 24, 1997, unless Wood had a “properly filed” applica- tion for state postconviction relief “pending” in Colorado state court during that period. Wood maintains he had such an application pending on April 24, 1996: the Rule 35(c) motion he filed in 1995. That motion, Wood asserts, remained pending (thus continuing to suspend the one- year clock) until at least August 2004, when he filed his second motion for postconviction relief in state court. The 2004 motion, the State does not contest, was “properly filed.” Wood argues that this second motion further tolled the limitations period until February 5, 2007, exactly one year before he filed the federal petition at issue here. If Wood is correct that his 1995 motion remained “pending” in state court from April 1996 until |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | motion remained “pending” in state court from April 1996 until August 2004, his federal petition would be timely. In its preanswer response to Wood’s petition, the State set forth its comprehension of the statute of limitations issue. It noted that Wood’s “time for filing a habeas peti- tion began to run on April 24, 1996, when the AEDPA became effective” and that Wood “had until April 24, 1997, plus any tolling periods, to timely file his habeas petition.” App. 69a–70a. The State next identified the crucial ques- tion: Did Wood’s 1995 state petition arrest the one-year statute of limitations period from 1996 until 2004? at 70a. “[I]t is certainly arguable,” the State then asserted, “that the 1995 postconviction motion was abandoned —————— 3 The one-year clock may also be stopped—or “tolled”—for equitable reasons, notably when an “extraordinary circumstance” prevents a prisoner from filing his federal petition on time. See Holland v. Flor- ida, 560 U. S. Wood does not contend that the equitable tolling doctrine applies to his case. App. 144a, n. 5. 6 WOOD v. MILYARD Opinion of the Court before 1997 and thus did not toll the AEDPA statute of limitations at all.” But rather than inviting a deci- sion on the statute of limitations question, the State in- formed the District Court it would “not challenge” Wood’s petition on timeliness grounds; instead, the State simply defended against Wood’s double jeopardy and Sixth Amendment claims on the merits. B “Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant’s answer or in an amendment thereto.” 547 U. S., at (citing Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a)). See also Habeas Corpus Rule 5(b) (requiring the State to plead a statute of limitations defense in its answer).4 An affirmative defense, once forfeited, is “exclu[ded] from the case,” 5 C. Wright & A. Miller, Federal Practice and Procedure pp. 644–645 (3d ed. 2004), and, as a rule, cannot be as- serted on appeal. See 547 U. S., 17 (SCALIA, J., dissenting); ; 22 (CA1 1991) (“It is hornbook law that theories not raised squarely in the district court cannot be surfaced for the first time on appeal.”). In we recognized a modest exception to the rule that a federal court will not consider a forfeited affirmative 481 U. S., at The District Court in denied a federal habeas petition on the merits. On appeal, the State argued for the first time that the petition should be dismissed because —————— 4 We note here the distinction between defenses that are “waived” and those that |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | the distinction between defenses that are “waived” and those that are “forfeited.” A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve. Kontrick v. Ryan, 540 U.S. 443, 458, n. 13 (2004); United (1993). That distinction is key to our decision in Wood’s case. Cite as: 566 U. S. (2012) 7 Opinion of the Court the petitioner had failed to exhaust relief available in state court. See Habeas Corpus Rule 5(b) (list- ing “failure to exhaust state remedies” as a threshold bar to federal habeas relief). Despite the State’s failure to raise the nonexhaustion argument in the District Court, the Seventh Circuit accepted the argument and ruled for the State on that ground. We granted certiorari to decide whether a court of appeals has discretion to address a non- exhaustion defense that the State failed to raise in the district court. Although “express[ing] our reluctance to adopt rules that allow a party to withhold raising a defense until after the ‘main event’ is over,” we nonetheless concluded that the bar to court of appeals’ consideration of a forfeited habeas defense is not absolute. The exhaustion doctrine, we noted, is founded on concerns broader than those of the parties; in particular, the doc- trine fosters respectful, harmonious relations between the state and federal judiciaries. –135. With that comity interest in mind, we held that federal appellate courts have discretion, in “exceptional cases,” to consider a nonexhaustion argument “inadverten[tly]” overlooked by the State in the District Court.5 In we affirmed a federal district court’s authority to consider a forfeited habeas defense when extraordinary circumstances so 547 U. S., 01. There, the State miscalculated a time span, specifically, the number of days running between the finality of ’s state-court conviction and the filing of his federal habeas petition. 03. As a result, the State erroneously informed the District Court that ’s petition was timely. A —————— 5 Although our decision in did not expressly distinguish between forfeited and waived defenses, we made clear in that a federal court has the authority to resurrect only forfeited defenses. See infra, at 8–9. 8 WOOD v. MILYARD Opinion of the Court Magistrate Judge caught the State’s computation error and recommended that the petition be dismissed as un- timely, notwithstanding the State’s timeliness concession. 04. The District Court adopted the recommenda- tion, and the Court of Appeals upheld the trial court’s sua sponte dismissal of the petition as untimely. Concluding that it would make “scant sense” to treat AEDPA’s |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | Concluding that it would make “scant sense” to treat AEDPA’s statute of limitations differently from other threshold constraints on federal habeas petitioners, we held “that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas petition.” 09; (noting that Habeas Corpus Rule 5(b) places “ ‘a statute of limitations’ defense on a par with ‘failure to exhaust state remedies, a proce- dural bar, [and] non-retroactivity.’ ”). Affording federal courts leeway to consider a forfeited timeliness defense was appropriate, we again reasoned, because AEDPA’s statute of limitations, like the exhaustion doctrine, “im- plicat[es] values beyond the concerns of the parties.” 547 U. S., 05 (quoting 123 (CA2 2000)); 547 U. S., 05–206 (“The AEDPA statute of limitation promotes judicial efficiency and con- servation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitu- tional questions while the record is fresh, and lends final- ity to state court judgments within a reasonable time.” (internal quotation marks omitted)). We clarified, however, that a federal court does not have carte blanche to depart from the principle of party presen- tation basic to our adversary system. See Greenlaw v. United States, Only where the State does not “strategically withh[o]ld the [limita- tions] defense or cho[o]se to relinquish it,” and where the petitioner is accorded a fair opportunity to present his position, may a district court consider the defense on its own initiative and “ ‘determine whether the interests of Cite as: 566 U. S. (2012) 9 Opinion of the Court justice would be better served’ by addressing the merits or by dismissing the petition as time barred.” 547 U. S., 10–211 (quoting ; internal quotation marks omitted). It would be “an abuse of discre- tion,” we observed, for a court “to override a State’s delib- erate waiver of a limitations ” 547 U. S., at In ’s case itself, we emphasized, the State’s concession of timeliness resulted from “inadvertent error,” 11, not from any deliberate decision to proceed straightaway to the merits. Consistent with and we decline to adopt an absolute rule barring a court of appeals from rais- ing, on its own motion, a forfeited timeliness The institutional interests served by AEDPA’s statute of limi- tations are also present when a habeas case moves to the court of appeals, a point recognized with re- spect to a nonexhaustion We accordingly hold, in response to the first question presented, see that courts of appeals, like district courts, have the au- thority—though not the obligation—to raise a forfeited timeliness defense on their own |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | the obligation—to raise a forfeited timeliness defense on their own initiative. C We turn now to the second, case-specific, inquiry. See Although a court of appeals has discretion to ad- dress, sua sponte, the timeliness of a habeas petition, appellate courts should reserve that authority for use in exceptional cases. For good reason, appellate courts ordi- narily abstain from entertaining issues that have not been raised and preserved in the court of first instance. See That restraint is all the more appropriate when the appellate court itself spots an issue the parties did not air below, and therefore would not have antici- pated in developing their arguments on appeal. Due regard for the trial court’s processes and time in- vestment is also a consideration appellate courts should 10 WOOD v. MILYARD Opinion of the Court not overlook. It typically takes a district court more time to decide a habeas case on the merits, than it does to resolve a petition on threshold procedural grounds. See Dept. of Justice, Bureau of Justice Statistics, R. Hanson & H. Daley, Federal Habeas Corpus Review: Challenging State Court Criminal Convictions 23 (NCJ–155504, 1995) (district courts spent an average of 477 days to decide a habeas petition on the merits, and 268 days to resolve a petition on procedural grounds). When a court of appeals raises a procedural impediment to disposition on the mer- its, and disposes of the case on that ground, the district court’s labor is discounted and the appellate court acts not as a court of review but as one of first view. In light of the foregoing discussion of the relevant con- siderations, we hold that the Tenth Circuit abused its discretion when it dismissed Wood’s petition as untimely. In the District Court, the State was well aware of the statute of limitations defense available to it and of the arguments that could be made in support of the See –6. Yet the State twice informed the Dis- trict Court that it “will not challenge, but [is] not conced- ing” the timeliness of Wood’s petition. See Essentially, the District Court asked the State: Will you oppose the petition on statute of limitations grounds? The State answered: Such a challenge would be supportable, but we won’t make the challenge here. “[W]aiver is the ‘intentional relinquishment or aban- donment of a known right.’ ” Kontrick v. Ryan, 540 U.S. 443, 458, n. 13 (2004) (quoting United 507 U.S. 725, (1993)). The State’s conduct in this case fits that description. Its decision not to contest the timeliness of Wood’s petition did not stem from |
Justice Ginsburg | 2,012 | 5 | majority | Wood v. Milyard | https://www.courtlistener.com/opinion/798510/wood-v-milyard/ | contest the timeliness of Wood’s petition did not stem from an “inadvertent er- ror,” as did the State’s concession in See 547 U. S., 11. Rather, the State, after expressing its clear and accurate understanding of the timeliness issue, see –6, deliberately steered the District Court away from Cite as: 566 U. S. (2012) 11 Opinion of the Court the question and towards the merits of Wood’s petition. In short, the State knew it had an “arguable” statute of limitations defense, see yet it chose, in no uncertain terms, to refrain from interposing a timeliness “challenge” to Wood’s petition. The District Court there- fore reached and decided the merits of the petition. The Tenth Circuit should have done so as well. * * * For the reasons stated, the judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. (2012) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–9995 PATRICK WOOD, PETITIONER v. KEVIN MILYARD, WARDEN, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [April 24, 2012] JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment. |
Justice Stevens | 2,007 | 16 | majority | Brewer v. Quarterman | https://www.courtlistener.com/opinion/145741/brewer-v-quarterman/ | This is a companion case to Like the petitioner in that case, petitioner Brent Ray Brewer claims that the former Texas capital sentencing statute impermissibly prevented his sentencing jury from giving meaningful consideration to constitutionally relevant mitigating evidence. In we held that jury instructions that merely articulated the Texas "special issues," without directing the jury "to consider fully Penry's mitigating evidence as it bears on his personal culpability," did not provide his sentencing jury with an adequate opportunity to decide whether that evidence might provide a legitimate basis for imposing a sentence other than death. We characterized the evidence of Penry's mental retardation and history of childhood abuse as a "two-edged sword," because "it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future." As an overview of the cases both preceding and following Penry I demonstrates, we have long recognized that a sentencing jury must be able to give a "`reasoned moral response'" to a defendant's mitigating evidence particularly that evidence which tends to diminish his culpability when deciding whether to sentence him to death. ; see also Abdul-Kabir, U.S. at -, -, and in which we held that sentencing juries in capital cases "must be permitted to consider any relevant mitigating factor," (emphasis added). In more recent years, we have repeatedly emphasized that a Penry violation exists whenever a statute, or a judicial gloss on a statute, prevents a jury from giving meaningful effect to mitigating evidence that may justify the imposition of a life sentence rather than a death sentence. See Abdul-Kabir, U.S. at -, We do so again here, and hold that the Texas state court's decision to deny relief to Brewer under Penry I was both "contrary to" and "involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (d). I In 1991, Brewer was convicted of murder committed during the course of a robbery. At sentencing, he introduced several different types of mitigating evidence, including "that he had a bout with depression three months before the murder; that he was briefly hospitalized for that depression; that his co-defendant, a woman with whom he was apparently obsessed, dominated and manipulated him; that he had been abused by his father; that he had witnessed his father abuse his mother; and that he had abused drugs." (footnotes omitted).[1] As a result of a strategic decision on his counsel's part, Brewer neither secured nor presented any expert psychological or psychiatric testimony. At the |
Justice Stevens | 2,007 | 16 | majority | Brewer v. Quarterman | https://www.courtlistener.com/opinion/145741/brewer-v-quarterman/ | nor presented any expert psychological or psychiatric testimony. At the conclusion of the sentencing hearing, Brewer submitted several additional instructions designed to give effect to the mitigating evidence he did present. App. 81-87. The trial judge rejected all of his proposed instructions and instead instructed the jury to answer only two special issues: "`Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, BRENT RAY BREWER, that caused the death of the deceased, Robert Doyle Laminack, was committed deliberately and with the reasonable expectation that the death of the deceased would result? "`Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, BRENT RAY BREWER, would commit criminal acts *1711 of violence that would constitute a continuing threat to society?'" In closing argument, the prosecutor emphasized that Brewer's violent response to his father's extensive physical abuse of both Brewer and his mother supported an affirmative answer to the "future dangerousness" special issue. In contrast, he deemphasized any mitigating effect that such evidence should have on the jury's determination of Brewer's fate: "And, you know, folks, you can take a puppy, and you can beat that puppy and you can make him mean, but if that dog bites, he is going to bite the rest of his life, for whatever reason. "Whatever got him to this point, he is what he is today. And that will never change. That will never change. "All that's happened to this time or all those years cannot change the violence and the cold, cold-bloodedness that he's exhibited right here. Not one tear. Not one tear, because life means nothing to him. Zero. "You go back, you look at the evidence and you decide, not because of a poor family and not because of the survivors, because of the evidence that you see that he has shown." App. 118. The prosecutor stressed that the jurors lacked the power to exercise moral judgment in determining Brewer's sentence, admonishing them that "[y]ou don't have the power to say whether [Brewer] lives or dies. You answer the questions according to the evidence, mu[ch] like you did at the guilt or innocence [sic]. That's all." Ultimately, the jury answered both special issues in the affirmative, and Brewer was sentenced to death. Brewer's conviction and sentence were affirmed on direct appeal.[2]Brewer v. State, No. 71,307 (Tex.Crim.App., June 22, 1994) (en banc), App. 122-171. He then filed an application for state postconviction relief, which the Texas Court of Criminal Appeals (CCA) denied on January 31, over the dissent |
Justice Stevens | 2,007 | 16 | majority | Brewer v. Quarterman | https://www.courtlistener.com/opinion/145741/brewer-v-quarterman/ | Criminal Appeals (CCA) denied on January 31, over the dissent of three judges.[3]Ex parte Brewer, Brewer subsequently filed a federal habeas petition in the United States District Court for the Northern District of Texas. After requesting supplemental briefing concerning the District Court granted conditional relief. No. Civ. A.2:01-CV-0112-J App. -213. On March 1, the United States Court of Appeals for the Fifth Circuit reversed the judgment of the District Court and rendered its own judgment denying the We granted certiorari. 549 U.S. *1712 II Like the petitioner in Abdul-Kabir, Brewer contends that the same constitutional error that infected Penry's sentencing hearing occurred in his trial. We agree. As did Penry's, Brewer's mitigating evidence served as a "two-edged sword" because it tended to confirm the State's evidence of future dangerousness as well as lessen his culpability for the crime.[4]Penry I, 492 U.S., It may well be true that Brewer's mitigating evidence was less compelling than Penry's, but, contrary to the view of the CCA, that difference does not provide an acceptable justification for refusing to apply the reasoning in Penry I to this case.[5] There is surely a reasonable likelihood that the jurors accepted the prosecutor's argument at the close of the sentencing hearing that all they needed to decide was whether Brewer had acted deliberately and would likely be dangerous in the future,[6] necessarily disregarding any independent concern that, given Brewer's troubled background, he may not be deserving of a death sentence. Also unpersuasive in distinguishing the instant case from others to which Penry I applies is the Fifth Circuit's explanation regarding the lack of expert evidence in Brewer's case (as compared to that presented by the petitioner in Abdul-Kabir) and its distinction between mental illness and mental retardation. In its opinion reversing the District Court's conditional grant of habeas relief, the Court of Appeals noted that, under its precedents, "[t]he only instances in which mental illness has given rise to Penry I violations involve those where the illness in question is chronic and/or immutable [as in the case of mental retardation]." The court also emphasized the lack of expert psychiatric evidence in this case, contrasting the record below with that in Abdul-Kabir, and concluded that Brewer "came nowhere near to producing evidence sufficient for us to grant relief." Nowhere in our Penry line of cases have we suggested that the question whether mitigating evidence could have been adequately considered by the jury is a matter purely of quantity, degree, or immutability. Rather, we have focused on *1713 whether such evidence has mitigating relevance to the special issues and the |
Justice Stevens | 2,007 | 16 | majority | Brewer v. Quarterman | https://www.courtlistener.com/opinion/145741/brewer-v-quarterman/ | evidence has mitigating relevance to the special issues and the extent to which it may diminish a defendant's moral culpability for the crime. The transient quality of such mitigating evidence may make it more likely to fall in part within the ambit of the special issues; however, as we explained in Penry I, such evidence may still have "relevance to the defendant's moral culpability beyond the scope of the special verdict questions." ). III Under the narrowest possible reading of our opinion in Penry I, the Texas special issues do not provide for adequate consideration of a defendant's mitigating evidence when that evidence functions as a "two-edged sword." As the District Court explained in its opinion granting habeas corpus relief in this case: "The mitigating evidence presented may have served as a basis for mercy even if a jury decided that the murder was committed deliberately and that Petitioner posed a continuing threat. Without an instruction, much less a special issue on mitigation, this evidence was out of the jury's reach. Given the nature of the mitigating evidence before the jury and the lack of any instruction on mitigation, there is a reasonable likelihood that the jury applied its instructions in a way that prevented the consideration of the mitigating evidence. Reviewing the evidence in light of the special issues, a jury would be very hard pressed to see the evidence presented as anything but aggravating. Failure to submit an instruction on mitigation evidence was an unreasonable application of federal law and Supreme Court precedent. Accordingly, habeas relief on this issue is conditionally granted." No. Civ.A.2:01-CV-0112-J, at 9, App. 196. In reversing the District Court's grant of habeas relief, and rejecting that court's conclusion that Brewer's mitigating evidence was effectively "out of the jury's reach," the Court of Appeals mischaracterized the law as demanding only that such evidence be given "sufficient mitigating effect," and improperly equated "sufficient effect" with "full effect."[7] This is not consistent with the reasoning of our opinion issued after Penry's resentencing (and before the Fifth Circuit's opinion in this case). See Like the "`constitutional relevance'" standard that we rejected in Tennard, a "sufficient effect" standard has "no foundation in the decisions of this Court." For reasons not supported by our prior precedents, but instead dictated by what until quite recently has been the Fifth Circuit's difficult Penry jurisprudence, the Court of Appeals concluded that Brewer's evidence of mental illness and substance abuse could not constitute a Penry violation. *1714 It further concluded that "evidence of a troubled childhood may, as a result of its temporary character, |
Justice O'Connor | 1,991 | 14 | majority | Touby v. United States | https://www.courtlistener.com/opinion/112591/touby-v-united-states/ | Petitioners were convicted of manufacturing and conspiring to manufacture "Euphoria," a drug temporarily designated as a schedule I controlled substance pursuant to 201(h) of the Controlled Substances Act, 21 U.S. C. 811(h). We consider whether 201(h) unconstitutionally delegates legislative power to the Attorney General and whether the Attorney General's subdelegation to the Drug Enforcement Administration (DEA) was authorized by statute. I In 1970, Congress enacted the Controlled Substances Act (Act), as amended, 21 U.S. C. 801 et seq. The Act establishes five categories or "schedules" of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Violations involving schedule I substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety. Relevant here, 201(a) of the Act authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another. 201(a), 21 U.S. C. 811(a). When adding a substance to a schedule, the Attorney General must follow specified procedures. First, the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (HHS), together with a recommendation as to whether the substance should be controlled. A substance cannot be scheduled if the Secretary recommends against it. 201(b), 21 U.S. C. 811(b). Second, the Attorney General must consider eight factors with respect to the substance, including its potential for abuse, scientific evidence of its pharmacological effect, its psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled. 201(c), 21 U.S. C. 811(c). Third, the Attorney General must comply with the notice-and-hearing *163 provisions of the Administrative Procedure Act (APA), 5 U.S. C. 551-559, which permit comment by interested parties. 201(a), 21 U.S. C. 811(a). In addition, the Act permits any aggrieved person to challenge the scheduling of a substance by the Attorney General in a court of appeals. 507, 21 U.S. C. 877. It takes time to comply with these procedural requirements. From the time when law enforcement officials identify a dangerous new drug, it typically takes 6 to 12 months to add it to one of the schedules. S. Rep. No. 98-225, p. 264 (1984). Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differed slightly in chemical composition, so that existing schedules did not apply to them. These "designer drugs" were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions. See To combat the |
Justice O'Connor | 1,991 | 14 | majority | Touby v. United States | https://www.courtlistener.com/opinion/112591/touby-v-united-states/ | to schedule them and initiate prosecutions. See To combat the "designer drug" problem, Congress in 1984 amended the Act to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is "necessary to avoid an imminent hazard to the public safety." 201(h), 21 U.S. C. 811(h). Temporary scheduling under 201(h) allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. The Attorney General need consider only three of the eight factors required for permanent scheduling. 201(h)(3), 21 U.S. C. 811(h)(3). Rather than comply with the APA notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of the proposed scheduling in the Federal Register. 201(h)(1), 21 U.S. C. 811(h)(1). Notice also must be transmitted to the Secretary of HHS, but the Secretary's prior approval of a proposed scheduling order is not required. See 201(h)(4), 21 U.S. C. 811(h)(4). Finally, 201(h)(6), 21 U.S. C. 811(h)(6), provides that an order to schedule a substance temporarily "is not subject to judicial review." *164 Because it has fewer procedural requirements, temporary scheduling enables the Government to respond more quickly to the threat posed by dangerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process, in which case the temporary scheduling order remains valid for an additional six months. 201(h)(2), 21 U.S. C. 811(h)(2). The Attorney General promulgated regulations delegating to the DEA his powers under the Act, including the power to schedule controlled substances on a temporary basis. See 28 CFR 0.100(b) Pursuant to that delegation, the DEA Administrator issued an order scheduling temporarily 4-methylaminorex, known more commonly as "Euphoria," as a schedule I controlled substance. (1987). The Administrator subsequently initiated formal rulemaking procedures, following which Euphoria was added permanently to schedule I. While the temporary scheduling order was in effect, DEA agents, executing a valid search warrant, discovered a fully operational drug laboratory in Daniel and Lyrissa Touby's home. The Toubys were indicted for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment on the grounds that 201(h) unconstitutionally delegates legislative power to the Attorney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The United States District Court for the District of New Jersey denied the motion to dismiss, ; and the Court of Appeals for the Third Circuit affirmed petitioners' subsequent convictions, We granted |
Justice O'Connor | 1,991 | 14 | majority | Touby v. United States | https://www.courtlistener.com/opinion/112591/touby-v-united-states/ | for the Third Circuit affirmed petitioners' subsequent convictions, We granted certiorari, and now affirm. II The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United *165 States." U. S. Const., Art. I, 1. From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government. "The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government." We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power." J. W. Hampton, Jr., & Petitioners wisely concede that Congress has set forth in 201(h) an "intelligible principle" to constrain the Attorney General's discretion to schedule controlled substances on a temporary basis. We have upheld as providing sufficient guidance statutes authorizing the War Department to recover "excessive profits" earned on military contracts, see ; authorizing the Price Administrator to fix "fair and equitable" commodities prices, see ; and authorizing the Federal Communications Commission to regnlate broadcast licensing in the "public interest," see National Broadcasting In light of these precedents, one cannot plausibly argue that 201(h)'s "imminent hazard to the public safety" standard is not an intelligible principle. Petitioners suggest, however, that something more than an "intelligible principle" is required when Congress authorizes another Branch to promulgate regulations that contemplate *166 criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether more specific guidance is in fact required. Compare cited in with and United We need not resolve the issue today. We conclude that 201(h) passes muster even if greater congressional specificity is required in the criminal context. Although it features fewer procedural requirements than the permanent scheduling statute, 201(h) meaningfully constrains the Attorney General's discretion to define criminal conduct. To schedule a drug temporarily, the Attorney General must find that doing so is "necessary to avoid an imminent hazard to the public safety." 201(h)(1), 21 U.S. C. 811(h)(1). In making this determination, he is "required to consider" three factors: |
Justice O'Connor | 1,991 | 14 | majority | Touby v. United States | https://www.courtlistener.com/opinion/112591/touby-v-united-states/ | making this determination, he is "required to consider" three factors: the drug's "history and current pattern of abuse"; "[t]he scope, duration, and significance of abuse"; and "[w]hat, if any, risk there is to the public health." 201(c)(4)-(6), 201(h)(3), 21 U.S. C. 811(c)(4)-(6), 811(h)(3). Included within these factors are three other factors on which the statute places a special emphasis: "actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution." 201(h)(3), 21 U.S. C. 811(h)(3). The Attorney General also must publish 30-day notice of the proposed scheduling in the Federal Register, transmit notice to the Secretary of HHS, and "take into consideration any comments submitted by the Secretary in response." 201(h)(1), 201(h)(4), 21 U.S. C. 811(h)(1), 811(h)(4). In addition to satisfying the numerous requirements of 201(h), the Attorney General must satisfy the requirements of 202(b), 21 U.S. C. 812(b). This section identifies the criteria for adding a substance to each of the five schedules. *167 As the United States acknowledges in its brief, 202(b) speaks in mandatory terms, drawing no distinction between permanent and temporary scheduling. With exceptions not pertinent here, it states that "a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance." 202(b), 21 U.S. C. 812(b). Thus, apart from the "imminent hazard" determination required by 201(h), the Attorney General, if he wishes to add temporarily a drug to schedule I, must find that it "has a high potential for abuse," that it "has no currently accepted medical use in treatment in the United States," and that "[t]here is a lack of accepted safety for use of the drug under medical supervision." 202(b)(1), 21 U.S. C. 812(b)(1). It is clear that in 201(h) and 202(b) Congress has placed multiple specific restrictions on the Attorney General's discretion to define criminal conduct. These restrictions satisfy the constitutional requirements of the nondelegation doctrine. Petitioners point to two other aspects of the temporary scheduling statute that allegedly render it unconstitutional. They argue first that it concentrates too much power in the Attorney General. Petitioners concede that Congress may legitimately authorize someone in the Executive Branch to schedule drugs temporarily, but argue that it must be someone other than the Attorney General because he wields the power to prosecute crimes. They insist that allowing the Attorney General both to schedule a particular drug and to prosecute those who manufacture that drug violates the principle of separation of powers. Petitioners do not object to the permanent scheduling statute, however, because it gives "veto power" |
Justice O'Connor | 1,991 | 14 | majority | Touby v. United States | https://www.courtlistener.com/opinion/112591/touby-v-united-states/ | the permanent scheduling statute, however, because it gives "veto power" to the Secretary of HHS. Brief for Petitioners 20. This argument has no basis in our separation-of-powers jurisprudence. The principle of separation of powers focuses on the distribution of powers among the three coequal *168 Branches, see ; it does not speak to the manner in which authority is parceled out within a single Branch. The Constitution vests all executive power in the President, U. S. Const., Art. II, 1, and it is the President to whom both the Secretary and the Attorney General report. Petitioners' argument that temporary scheduling authority should have been vested in one executive officer rather than another does not implicate separation-of-powers concerns; it merely challenges the wisdom of a legitimate policy judgment made by Congress. Petitioners next argue that the temporary scheduling statute is unconstitutional because it bars judicial review. They explain that the purpose of requiring an "intelligible principle" is to permit a court to "`ascertain whether the will of Congress has been obeyed.'" quoting By providing that a temporary scheduling order "is not subject to judicial review," 201(h)(6), the Act purportedly violates the nondelegation doctrine. We reject petitioners' argument. Although 201(h)(6), 21 U.S. C. 811(h)(6), states that a temporary scheduling order "is not subject to judicial review," another section of the Act plainly authorizes judicial review of a permanent scheduling order. See 507, 21 U.S. C. 877. Thus, the effect of 201(h)(6) is merely to postpone legal challenges to a scheduling order for up to 18 months, until the administrative process has run its course. This is consistent with Congress' express desire to permit the Government to respond quickly to the appearance in the market of dangerous new drugs. Even before a permanent scheduling order is entered, judicial review is possible under certain circumstances. The United States contends, and we agree, that 201(h)(6) does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution. See Brief for United States 34-36. This is sufficient to permit a court to "`ascertain whether the will of *169 Congress has been obeyed.'" at quoting 321 U. S., Under these circumstances, the nondelegation doctrine does not require, in addition, an opportunity for preenforcement review of administrative determinations. III Having concluded that Congress did not unconstitutionally delegate legislative power to the Attorney General, we consider petitioners' claim that the Attorney General improperly delegated his temporary scheduling power to the DEA. Petitioners insist that delegation within the Executive Branch is permitted only to the extent authorized by Congress, and |
Justice Stevens | 2,000 | 16 | concurring | Stenberg v. Carhart | https://www.courtlistener.com/opinion/118387/stenberg-v-carhart/ | Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of "potential life" than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislationa reason that also explains much of the Court's rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holdingthat the word "liberty" in the Fourteenth Amendment includes a woman's right to make this difficult and extremely personal decisionmakes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska's law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but *947 not the other, is simply irrational. See U. S. Const., Amdt. 14. |
Justice Brennan | 1,976 | 13 | dissenting | Hampton v. United States | https://www.courtlistener.com/opinion/109437/hampton-v-united-states/ | I joined my Brother STEWART'S dissent in United *496 and Mr. Justice Frankfurter's opinion concurring in the result in Those opinions and the separate opinion of Mr. Justice Roberts in express the view, with which I fully agree, that "courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced." The "subjective" approach to the defense of entrapment followed by the Court today and in Sorrells, Sherman, and focuses on the conduct and propensities of the particular defendant in each case and, in the absence of a conclusive showing, permits the jury to determine as a question of fact the defendant's "predisposition" to the crime.[1] The focus of the view *497 espoused by Mr. Justice Roberts, Mr. Justice Frankfurter, and my Brother STEWART "is not on the propensities and predisposition of a specific defendant, but on `whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.'. Under this approach, the determination of the lawfulness of the Government's conduct must be madeas it is on all questions involving the legality of law enforcement methodsby the trial judge, not the jury." Petitioner's claims in this case allege a course of police conduct that, under this view, would plainly be held to constitute entrapment as a matter of law. In any event, I think that reversal of petitioner's conviction is also compelled for those who follow the "subjective" approach to the defense of entrapment. As MR. JUSTICE REHNQUIST notes, the Government's role in the criminal activity involved in this case was more pervasive than the Government involvement in Ante, at 489. In addition, I agree with MR. JUSTICE POWELL that does not foreclose imposition of a bar to conviction based upon our supervisory power or due process principleswhere the conduct of law enforcement authorities is sufficiently offensive, even though the individuals entitled to invoke such a defense might be "predisposed." Ante, at 495. In my view, the police activity in this case was beyond permissible limits. Two facts significantly distinguish this case from First, the chemical supplied in that case was not contraband. It is legal to possess and sell phenyl-2-propanone and, although the Government there supplied an ingredient that was essential to the manufacture of methamphetamine, it did not supply the contraband itself. In contrast, petitioner claims that the very narcotic *498 he is accused of selling was |
Justice Brennan | 1,976 | 13 | dissenting | Hampton v. United States | https://www.courtlistener.com/opinion/109437/hampton-v-united-states/ | the very narcotic *498 he is accused of selling was supplied by an agent of the Government. Compare ante, at 489, with ante, at 491-492. Second, the defendant in "was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene." was charged with unlawfully manufacturing and processing methamphetamine, and his crime was participation in an ongoing operation. In contrast, the two sales for which petitioner was convicted were allegedly instigated by Government agents and completed by the Government's purchase. The beginning and end of this crime thus coincided exactly with the Government's entry into and withdrawal from the criminal activity involved in this case, while the Government was not similarly involved in 's crime. See Whether the differences from the situation are of degree or of kind, ante, at 489, I think they clearly require a different result. Where the Government's agent deliberately sets up the accused by supplying him with contraband and then bringing him to another agent as a potential purchaser, the Government's role has passed the point of toleration. United The Government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary. United There is little, if any, law enforcement interest promoted by such conduct; plainly it is not designed to discover ongoing drug traffic. Rather, such conduct deliberately entices an individual to commit a crime. That the accused is "predisposed" cannot possibly justify the action of government officials in purposefully creating *499 the crime. No one would suggest that the police could round up and jail all "predisposed" individuals, yet that is precisely what set-ups like the instant one are intended to accomplish. Cf. United -444 Thus, this case is nothing less than an instance of "the Government seeking to punish for an alleged offense which is the product of the creative activity of its own officials." These considerations persuaded the Court of Appeals for the Fifth Circuit to hold that where the Government has provided the contraband that the defendant is convicted of selling, there is entrapment as a matter of law. United That court has also concluded that this holding was not affected by See, e. g., United v. Oquendo, ; United v. Mosley, The Court of Appeals for the Third Circuit agreed, and followed after was decided.[2]United Even if these courts erred in holding that did not foreclose the finding of "entrapment" as a matter of law in see ante, at 492 n. 2, I agree with my |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | This case concerns a lawsuit brought by five mothers in Arizona whose children are eligible to receive child support services from the pursuant to Title IVD of the Social Security Act, as added, and as amended, 42 U.S. C. 651-669b (1994 ed. and Supp. II). These custodial parents sued the director of Arizona's child support agency *333 under Rev. Stat. 1979, 42 U.S. C. 1983, claiming that they had an enforceable individual right to have the 's program achieve "substantial compliance" with the requirements of Title IV Without distinguishing among the numerous provisions of this complex program, the Court of Appeals for the Ninth Circuit held that respondents had such a right. We disagree that the statutory scheme can be analyzed so generally, and hold that Title IVD does not give individuals a federal right to force a state agency to substantially comply with Title IV Accordingly, we vacate and remand with instructions to remand to the District Court. I This controversy concerns an interlocking set of cooperative federal-state welfare programs. Arizona participates in the federal Aid to Families with Dependent Children (AFDC) program, which provides subsistence welfare benefits to needy families. Social Security Act, Title IVA, 42 U.S. C. 601-6. To qualify for federal AFDC funds, the must certify that it will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IVD of the Social Security Act, 42 U.S. C. 651-669b (1994 ed. and Supp. II),[1] and will do so pursuant to a detailed plan that has been approved by the Secretary of Health and Human Services (Secretary). 602(a)(2); see also 652(a)(3). The Federal Government underwrites roughly two-thirds of the cost of the 's child support efforts. 655(a). But the must do more than simply collect overdue support payments; it must also establish a comprehensive system to establish paternity, *334 locate absent parents, and help families obtain support orders. 651, 654. A must provide these services free of charge to AFDC recipients and, when requested, for a nominal fee to children and custodial parents who are not receiving AFDC payments. 651, 654(4). AFDC recipients must assign their child support rights to the and fully cooperate with the 's efforts to establish paternity and obtain support payments. Although the may keep most of the support payments that it collects on behalf of AFDC families in order to offset the costs of providing welfare benefits, until recently it only had to distribute the first $50 of each payment to the family. 42 U.S. C. 657(b)(1). The amended version of Title IVD replaces this $50 |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | 657(b)(1). The amended version of Title IVD replaces this $50 pass-through with more generous distributions to families once they leave welfare. 42 U.S. C. 657(a)(2) (1994 ed., Supp. II). NonAFDC recipients who request the 's aid are entitled to have all collected funds passed through. 657(a)(3). In all cases, the must distribute the family's share of collected support payments within two business days after receipt. 654b(c)(1). The structure of each 's Title IVD agency, like the services it provides, must conform to federal guidelines. For example, s must create separate units to administer the plan, 654(3), and to disburse collected funds, 654(27), each of which must be staffed at levels set by the Secretary, 45 CFR 303. If a delegates its disbursement function to local governments, it must reward the most efficient local agencies with a share of federal incentive payments. 42 U.S. C. 654(22). To maintain detailed records of all pending cases, as well as to generate the various reports required by federal authorities, s must set up computer systems that meet numerous federal specifications. 654a. Finally, in addition to setting up this administrative framework, each participating *335 must enact laws designed to streamline paternity and child support actions. 654(), 666. To oversee this complex federal-state enterprise, Congress created the Office of Child Support Enforcement (OCSE) within the Department of Health and Human Services (HHS). This agency is charged with auditing the s' compliance with their federally approved plans. Audits must occur at least once every three years, or more often if a 's performance falls below certain standards. 652(a)(4). If a does not "substantially comply" with the requirements of Title IVD, the Secretary is authorized to penalize the by reducing its AFDC grant by up to five percent. 609(a)(8). The Secretary has interpreted "substantial compliance" as: (a) full compliance with requirements that services be offered statewide and that certain recipients be notified monthly of the support collected, as well as with reporting, recordkeeping, and accounting rules; (b) 90 percent compliance with case opening and case closure criteria; and (c) 75 percent compliance with most remaining program requirements. 45 CFR 305. The Secretary may suspend a penalty if the implements an adequate corrective action plan, and if the program achieves "substantial compliance," she may rescind the penalty entirely. 42 U.S. C. 609(c) (1994 ed., Supp. II). II Arizona's record of enforcing child support obligations is less than stellar, particularly compared with those of other s. In a 1992 report, Arizona's Auditor General chronicled many of the 's problems. In the 1989-1990 fiscal year, Arizona failed to collect enough child |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | the 1989-1990 fiscal year, Arizona failed to collect enough child support payments and federal incentives to cover the administrative costs of its Title IVD program1 of only 10 s to fall below that target. Arizona Auditor General, A Performance Audit of the Arizona Department of Economic Security 2 The Auditor General also pointed out that the cost effectiveness *336 of Arizona's support enforcement efforts had been "minimal." For every dollar spent on enforcement, the collected barely two dollarsalmost half the nationwide average. In 1992, nearly three-quarters of Arizona's 275,000 child support cases were still in the earliest stages of the enforcement process. In 42 percent of all cases, paternity had yet to be established. In a further 29 percent, the absent parent had been identified but his or her whereabouts were unknown. Overall, the Auditor General found that Arizona "obtains regular child support payments for fewer than five percent of the parents it serves." Federal audits by OCSE have also identified shortcomings in Arizona's child support system. In several reviews of the 's performance from 1984 to 1989, the Secretary found that Arizona had not substantially complied with significant program requirements, and she repeatedly penalized the one percent of its AFDC grant. The developed a corrective action plan after each failed audit, which prompted the Secretary to suspend andin every instance but onewaive the one-percent reduction in Arizona's AFDC funding.[2] *337 Respondents are five Arizona mothers (some of whom receive AFDC benefits) whose children are eligible for Title IVD child support services. They filed this lawsuit in the United s District Court for the District of Arizona against the Director of the Arizona Department of Economic Security, the state agency charged with providing child support services under Title IV In a lengthy complaint, respondents claimed that they had properly applied for child support services but that, despite their good faith efforts to cooperate, the agency never took adequate steps to obtain child support payments from the fathers of their children. These omissions, respondents contended, were largely attributable to structural defects in the 's child support efforts: staff shortages, high caseloads, unmanageable backlogs, and deficiencies in the 's accounting methods and recordkeeping. App. 11, 14-16. Respondents sought to represent a class of all children and custodial parents residing in Arizona who are or will be entitled to Title IVD services. Respondents claimed that the 's systemic failures violated their federal rights under Title IV Invoking 42 U.S. C. 1983, they asked the District Court to grant them the following broad relief: "Enter a declaratory judgment determining that operation of the Arizona |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | "Enter a declaratory judgment determining that operation of the Arizona Title IVD program violates controlling, substantive provisions of federal law creating rights in plaintiffs and the class enforceable through an action permitted by 42 U.S. C. 1983. "Grant permanent (and as necessary and appropriate, interlocutory) injunctions prohibiting continued adherence to the aforesaid pattern and practices and requiring affirmative measures sufficient to achieve as well as sustain substantial compliance with federal law, throughout all programmatic operations at issue." App. 42. The Director immediately moved to dismiss the complaint on several grounds, arguing primarily that Title IVD creates *338 no individual rights enforceable under 1983. The District Court treated this motion as one for summary judgment and ruled in favor of the Director. Relying primarily on a decision of the Court of Appeals for the Sixth Circuit, the District Court held that Congress had foreclosed private actions to enforce Title IVD by authorizing the Secretary to audit and cut off funds to s with programs that do not substantially comply with Title IVD's requirements. A divided panel of the Court of Appeals for the Ninth Circuit reversed. The majority identified the three principal factors this Court has used to determine whether a statute creates a privately enforceable right: whether the plaintiff is one of the "intended beneficiaries of the statute," whether the plaintiffs' asserted interests are not so "`vague and amorphous' as to be `beyond the competence of the judiciary to enforce,' " and whether the statute imposes a binding obligation on the ). Title IVD, the Court of Appeals held, satisfied each of these criteria. First, "needy families with children" were the intended beneficiaries of Title IV Second, the majority held that the "plaintiffs' asserted interest is not vague or amorphous, and it is sufficiently concrete to be judicially enforceable" because whether a delivers the services required by Title IVD "to the degree required by law is judicially ascertainable." Finally, the Court of Appeals stated that the statute imposes binding obligations because a must satisfy each of the requirements spelled out in Title IVD in order to receive AFDC funding. Although the majority acknowledged that the requirement that a remain in "substantial compliance" with its plan might seem ambiguous when divorced from context, the majority believed that the "highly detailed requirements" of the statute and its implementing *339 regulations adequately notified the of the extent of its duties. Moreover, the Court of Appeals noted that "the statute sets forth detailed criteria for measuring compliance with the statute," for example, generally requiring s to establish paternity in a given percentage of all |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | s to establish paternity in a given percentage of all cases. at 1149 (citing 42 U.S. C. 652(g)). Accordingly, the Court of Appeals concluded that respondents could sue petitioner under 1983 to bring Arizona's child support enforcement program into substantial compliance with federal The Court of Appeals also disagreed with the District Court's conclusion that Congress had implicitly foreclosed an individual remedy under 1983 for violations of Title IV The majority noted that Title IVD includes no provisions for judicial enforcement that might supplant the 1983 remedy. Instead, the law simply gave the Secretary administrative oversight powers that were virtually indiscernible from those we had found insufficient to displace 1983 liability in The majority expressed no opinion as to the appropriateness of either injunctive or declaratory relief, and left that question for the District Court to answer in the first Judge Kleinfeld dissented, arguing that Congress placed the power to enforce Title IVD exclusively in the hands of the Secretary. He contended that the "`substantial compliance' standard does not `unambiguously confer' enforceable rights on any individual." At most, Title IVD called upon s "to try pretty hard, and do a pretty good job, of enforcing child support, and come up with a plan to try harder if the Secretary thinks they have not been trying hard enough." We granted certiorari to resolve disagreement among the Courts of Appeals as to whether individuals may sue state *340 officials under 1983 for violations of Title IV[3] III Section 1983 imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." We have held that this provision safeguards certain rights conferred by federal statutes. In order to seek redress through 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal Golden Transit We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that *341 its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the s. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. ; see also Pennhurst School and Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | individual right, there is only a rebuttable presumption that the right is enforceable under 1983. Because our inquiry focuses on congressional intent, dismissal is proper if Congress "specifically foreclosed a remedy under 1983." Congress may do so expressly, by forbidding recourse to 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under 1983. A With these principles in mind, we turn first to the question whether respondents have established that Title IVD gives them federal rights. In their complaint, respondents argued that federal law granted them "individual rights to all mandated services delivered in substantial compliance with Title IVD and its implementing regulations." App. 41. They sought a broad injunction requiring the Director of Arizona's child support agency to achieve "substantial compliance throughout all programmatic operations." Attributing the deficiencies in the 's program primarily to staff shortages and other structural defects, respondents essentially invited the District Court to oversee every aspect of Arizona's Title IVD program. *342 Without distinguishing among the numerous rights that might have been created by this federally funded welfare program, the Court of Appeals agreed in sweeping terms that "Title IVD creates enforceable rights in families in need of Title IVD services." The Court of Appeals did not specify exactly which "rights" it was purporting to recognize, but it apparently believed that federal law gave respondents the right to have the substantially comply with Title IVD in all respects. We disagree. As an initial matter, the lower court's holding that Title IVD "creates enforceable rights" paints with too broad a brush. It was incumbent upon respondents to identify with particularity the rights they claimed, since it is impossible to determine whether Title IVD, as an undifferentiated whole, gives rise to undefined "rights." Only when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights. See, e. g., Golden at In prior cases, we have been able to determine whether or not a statute created a given right because the plaintiffs articulated, and lower courts evaluated, well-defined claims. In for example, we held that tenants of public housing projects had a right to have their utility costs included within a rental payment that did not exceed 30 percent of their We did not ask whether the federal housing legislation generally gave rise to rights; rather, we focused our analysis on a specific statutory provision limiting "rent" to 30 percent of a tenant's Similarly, in |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | limiting "rent" to 30 percent of a tenant's Similarly, in we held that health care providers had an enforceable right to reimbursement at "reasonable and adequate rates" as required by a particular provision in the Medicaid -512. And in where we held that Title *343 IVE of the Social Security Act did not give the plaintiffs the right that they asserted, we again analyzed the claim in very specific terms: whether children had a right to have state authorities undertake "reasonable efforts to prevent removal of children from their homes and to facilitate reunification of families where removal had occurred." Finally, in we discerned in the structure of the National Labor Relations Act (NLRA) the very specific right of employees "to complete the collective-bargaining process and agree to an arbitration clause." See 512 U.S., at n. 27 (explaining that whether a claim founded on the NLRA is cognizable under 1983 may depend on whether the claim stems from abridgment of a "protected individual interest"). We did not simply ask whether the NLRA created unspecified "rights." The Court of Appeals did not engage in such a methodical inquiry. As best we can tell, the Court of Appeals seemed to think that respondents had a right to require the Director of Arizona's child support agency to bring the 's program into substantial compliance with Title IV But the requirement that a operate its child support program in "substantial compliance" with Title IVD was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the systemwide performance of a 's Title IVD program. Thus, the Secretary must look to the aggregate services provided by the not to whether the needs of any particular person have been satisfied. A substantially complies with Title IVD when it provides most mandated services (such as enforcement of support obligations) in only 75 percent of the cases reviewed during the federal audit period. 45 CFR 305.(a)(3)(iii) s must aim to establish paternity in 90 percent of all eligible cases, but may satisfy considerably lower targets so long as their *344 efforts are steadily improving. 42 U.S. C. 652(g). It is clear, then, that even when a is in "substantial compliance" with Title IVD, any individual plaintiff might still be among the 10 or 25 percent of persons whose needs ultimately go unmet. Moreover, even upon a finding of substantial noncompliance, the Secretary can merely reduce the 's AFDC grant by up |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | Secretary can merely reduce the 's AFDC grant by up to five percent; she cannot, by force of her own authority, command the to take any particular action or to provide any services to certain individuals. In short, the substantial compliance standard is designed simply to trigger penalty provisions that increase the frequency of audits and reduce the 's AFDC grant by a maximum of five percent. As such, it does not give rise to individual rights. The Court of Appeals erred not only in finding that individuals have an enforceable right to substantial compliance, but also in taking a blanket approach to determining whether Title IVD creates rights. It is readily apparent that many other provisions of that multifaceted statutory scheme do not fit our traditional three criteria for identifying statutory rights. To begin with, many provisions, like the "substantial compliance" standard, are designed only to guide the in structuring its systemwide efforts at enforcing support obligations. These provisions may ultimately benefit individuals who are eligible for Title IVD services, but only indirectly. For example, Title IVD lays out detailed requirements for the 's data processing system. Among other things, this system must sort information into standardized data elements specified by the Secretary; transmit information electronically to the 's AFDC system to monitor family eligibility for financial assistance; maintain the data necessary to meet federal reporting requirements; and provide for the electronic transfer of funds for purposes of income withholding and interstate collections. 42 U.S. C. 654a (1994 ed., Supp. II); 45 CFR 307.10 Obviously, these complex standards do not *345 give rise to individualized rights to computer services. They are simply intended to improve the overall efficiency of the s' child support enforcement scheme. The same reasoning applies to the staffing levels of the state agency, which respondents seem to claim are inadequate. App. 11 (Complaint ¶ 39) (alleging that delays in case processing are attributable to "extraordinary staff shortages, inordinately high caseloads and unmanageable backlogs"). Title IVD generally requires each participating to establish a separate child support enforcement unit "which meets such staffing and organizational requirements as the Secretary may by regulation prescribe." 42 U.S. C. 654(3). The regulations, in turn, simply provide that each level of the 's organization must have "sufficient staff" to fulfill specified functions. These mandates do not, however, give rise to federal rights. For one thing, the link between increased staffing and the services provided to any particular individual is far too tenuous to support the notion that Congress meant to give each and every Arizonan who is eligible for Title IVD |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | each and every Arizonan who is eligible for Title IVD the right to have the Department of Economic Security staffed at a "sufficient" level. Furthermore, neither the statute nor the regulation gives any guidance as to how large a staff would be "sufficient." Cf. Enforcement of such an undefined standard would certainly "strain judicial competence." We do not foreclose the possibility that some provisions of Title IVD give rise to individual rights. The lower court did not separate out the particular rights it believed arise from the statutory scheme, and we think the complaint is less than clear in this regard. For example, respondent Madrid alleged that the state agency managed to collect some support payments from her ex-husband but failed to pass *346 through the first $50 of each payment, to which she was purportedly entitled under the pre-1996 version of 657(b)(1). App. 13 (Complaint ¶ 48). Although 657 may give her a federal right to receive a specified portion of the money collected on her behalf by Arizona, she did not explicitly request such relief in the complaint. In any event, it is not at all apparent that respondents sought any relief more specific than a declaration that their "rights" were being violated and an injunction forcing Arizona's child support agency to "substantially comply" with all of the provisions of Title IV We think that this defect is best addressed by sending the case back for the District Court to construe the complaint in the first instance, in order to determine exactly what rights, considered in their most concrete, specific form, respondents are asserting. Only by manageably breaking down the complaint into specific allegations can the District Court proceed to determine whether any specific claim asserts an individual federal right. B Because we leave open the possibility that Title IVD may give rise to some individually enforceable rights, we pause to consider petitioner's final argument that no remand is warranted because the statute contains "a remedial scheme that is `sufficiently comprehensive to demonstrate congressional intent to preclude the remedy of suits under 1983.' " ). Because petitioner does not claim that any provision of Title IVD expressly curtails 1983 actions, she must make the difficult showing that allowing 1983 actions to go forward in these circumstances "would be inconsistent with Congress' carefully tailored scheme." Golden *347 Only twice have we found a remedial scheme sufficiently comprehensive to supplant 1983: in Sea and In Sea we focused on the "unusually elaborate enforcement provisions" of the Federal Water Pollution Control Act, which placed at the disposal of the Environmental Protection |
Justice O'Connor | 1,997 | 14 | majority | Blessing v. Freestone | https://www.courtlistener.com/opinion/118101/blessing-v-freestone/ | Act, which placed at the disposal of the Environmental Protection Agency a panoply of enforcement options, including noncompliance orders, civil suits, and criminal penalties. We emphasized that several provisions of the Act authorized private persons to initiate enforcement actions. at 14, We found it "hard to believe that Congress intended to preserve the 1983 right of action when it created so many specific statutory remedies, including the two citizen-suit provisions." at Likewise, in Smith, the review scheme in the Education of the Handicapped Act permitted aggrieved individuals to invoke "carefully tailored" local administrative procedures followed by federal judicial We reasoned that Congress could not possibly have wanted parents to skip these procedures and go straight to court by way of 1983, since that would have "render[ed] superfluous most of the detailed procedural protections outlined in the " We have also stressed that a plaintiff's ability to invoke 1983 cannot be defeated simply by "[t]he availability of administrative mechanisms to protect the plaintiff's interests." Golden at Thus, in we rejected the argument that the Secretary of Housing and Urban Development's "generalized powers" to audit local public housing authorities, to enforce annual contributions contracts, and to cut off federal funding demonstrated a congressional intention to prevent public housing tenants from using 1983 to enforce their rights under the federal Housing 479 U.S., 8. We reached much the same conclusion in where the Secretary of Health and Human Services *348 had power to reject state Medicaid plans or to withhold federal funding to s whose plans did not comply with federal Even though in both cases these oversight powers were accompanied by limited state grievance procedures for individuals, we found that 1983 was still available. 7-428; The enforcement scheme that Congress created in Title IVD is far more limited than those in Sea and Smith. Unlike the federal programs at issue in those cases, Title IVD contains no private remedyeither judicial or administrativethrough which aggrieved persons can seek redress. The only way that Title IVD assures that s live up to their child support plans is through the Secretary's oversight. The Secretary can audit only for "substantial compliance" on a programmatic basis. Furthermore, up to 25 percent of eligible children and custodial parents can go without most of the services enumerated in Title IVD before the Secretary can trim a 's AFDC grant. These limited powers to audit and cut federal funding closely resemble those powers at issue in and Although counsel for the Secretary suggested at oral argument that the Secretary "has the same right under a contract as any other party |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | In Seminole of a majority of this invoked the Eleventh Amendment to declare that the federal judicial power under Article III of the Constitution does not reach a private action against a State, even on a federal question. In the 's conception, however, the Eleventh Amendment was understood as having been enhanced by a "background principle" of state sovereign immunity (understood as immunity to suit), see that operated beyond its limited codification in the Amendment, dealing solely with federal citizen-state diversity jurisdiction. To the Seminole dissenters, of whom I was one, the 's enhancement of the Amendment was at odds with constitutional history and at war with the conception of divided sovereignty that is the essence of American federalism. Today's issue arises naturally in the aftermath of the decision in Seminole The holds that the Constitution bars an individual suit against a State to enforce a federal statutory right under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S. C. 201 et seq. (1994 ed. and Supp. III), when brought in the State's courts over its objection. In thus complementing its earlier decision, the of course confronts the fact that the state forum renders the Eleventh Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole : a State's sovereign immunity from all individual suits is a "fundamental *1 aspect" of state sovereignty "confirm[ed]" by the Tenth Amendment. Ante, at 7, 714. As a consequence, Seminole `s contorted reliance on the Eleventh Amendment and its background was presumably unnecessary; the Tenth would have done the work with an economy that the majority in Seminole would have welcomed. Indeed, if the 's current reasoning is correct, the Eleventh Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State's war debt could easily have been avoided if only the that decided had understood a State's inherent, Tenth Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law. The sequence of the 's positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the 's efforts to justify its holding. There is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The 's federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The 's history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding. On each point the has raised it is mistaken, and I respectfully dissent from its judgment. *2 I The rests its decision principally on the claim that immunity from suit was "a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution," ante, at 7, an aspect which the understands to have survived the ratification of the Constitution in 1788 and to have been "confirm[ed]" and given constitutional status, ante, at 714, by the adoption of the Tenth Amendment in 1791. If the truly means by "sovereign immunity" what that term meant at common law, see ante, at 737, its argument would be insupportable. While sovereign immunity entered many new state legal systems as a part of the common law selectively received from England, it was not understood to be indefeasible or to have been given any such status by the new National Constitution, which did not mention it. See Seminole and n. 55 (Souter, J., dissenting). Had the question been posed, state sovereign immunity could not have been thought to shield a State from suit under federal law on a subject committed to national jurisdiction by Article I of the Constitution. Congress exercising its conceded Article I power may unquestionably abrogate such immunity. I set out this position at length in my dissent in Seminole and will not repeat it here.[1] The does not, however, offer today's holding as a mere corollary to its reasoning in Seminole substituting the Tenth Amendment for the Eleventh as the occasion *3 demands, and it is fair to read its references to a "fundamental aspect" of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | discoverable by reason. This, I take it, is the sense in which the so emphatically relies on Alexander Hamilton's reference in The Federalist No. 81, p. 548 (J. Cooke ed. 1961), to the States' sovereign immunity from suit as an "inherent" right, see ante, at 716, a characterization that does not require, but is at least open to, a natural law reading. I understand the to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a "fundamental aspect" of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the 's opinion that would suggest a basis for saying that the ratification of the Tenth Amendment gave this "fundamental aspect" its constitutional status and protection against any legislative tampering by Congress.[2] The 's principal rationale for today's result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the Tenth Amendment in 1791)? *4 The answer is certainly no. There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. Whether one looks at the period before the framing, to the ratification controversies, or to the early republican era, the evidence is the same. Some Framers thought sovereign immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign immunity was a common law power defeasible, like other common law rights, by statute; and perhaps a few thought, in keeping with a natural law view distinct from the common law conception, that immunity was inherent in a sovereign because the body that made a law could not logically be bound by it. Natural law thinking on the part of a doubtful few will not, however, support the 's position. A The American Colonies did not enjoy sovereign immunity, that being a privilege understood in English law to be reserved for the Crown alone; "antecedent to the Declaration of Independence, none of the colonies were, or pretended to be, sovereign states," 1 J. Story, Commentaries on the Constitution 207, p. 149 (5th ed. 1891). Several colonial charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the corporate body established thereunder could sue and be sued. See 5 Sources and Documents of United States 36 (W. Swindler ed. 1975) (Massachusetts); 2 ; 8 ; |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | 36 (W. Swindler ed. 1975) (Massachusetts); 2 ; 8 ; 2 Other charters were given to individuals, who were necessarily subject to suit. See The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that the Colonies as such enjoyed any immunity *5 from suit. "[T]he law ascribes to the king the attribute of sovereignty, or pre-eminence," said Blackstone, 1 W. Blackstone, Commentaries *241 (hereinafter Blackstone), and for him, the sources for this notion were Bracton[3] and Acts of Parliament that declared the Crown imperial, at *241-*242. It was simply the King against whom "no suit or action can be brought even in civil matters, because no court can have jurisdiction over him."[4] If a *6 person should have "a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion." It is worth pausing here to note that after Blackstone had sovereign immunity at common law, he went on to say that the common law tradition was compatible with sovereign immunity as discussed by writers on "natural law": "And this is entirely consonant to what is laid down by the writers on natural law. `A subject,' says Puffendorf, `so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws.' For the end of such action is not to compel the prince to observe the contract, but to persuade him."[5]*7 Next Blackstone quoted Locke's explanation for immunity, according to which the risks of overreaching by "`a heady prince' " are "`well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger.' " (quoting J. Locke, Second Treatise of Civil Government 205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tradition that derived sovereign immunity not from the immemorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common law and natural law[6] conceptions of sovereign immunity, *8 |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | common law and natural law[6] conceptions of sovereign immunity, *8 he did not confuse them. It was as well he did not, for although the two conceptions were arguably "consonant" in England, where according to Blackstone, the Crown was sovereign,[7] their distinct foundations could make a difference in America, where the location of sovereignty was an issue that independence would raise with some exigence. B Starting in the mid-10's, ideas about sovereignty in colonial America began to shift as Americans argued that, lacking a voice in Parliament, they had not in any express way consented to being taxed. See B. Bailyn, The Ideological Origins of the American Revolution 204-9 ; G. Wood, The Creation of the American Republic, 17-1787, pp. 347-348 (1969). The story of the subsequent development of conceptions of sovereignty is complex and uneven; *9 here, it is enough to say that by the time independence was declared in 17, the locus of sovereignty was still an open question, except that almost by definition, advocates of independence denied that sovereignty with respect to the American Colonies remained with the King in Parliament. As the concept of sovereignty was unsettled, so was that of sovereign immunity. Some States appear to have understood themselves to be without immunity from suit in their own courts upon independence.[8] Connecticut and Rhode Island adopted their pre-existing charters as constitutions, without altering the provisions specifying their suability. See and nn. 42-43. Other new States understood themselves to be inheritors of the Crown's common law sovereign immunity and so enacted statutes authorizing legal remedies against the State parallel to those available in England.[9] There, although the Crown *770 was immune from suit, the contemporary practice allowed private litigants to seek legal remedies against the Crown through the petition of right or the monstrans de droit in the Chancery or Exchequer. See 3 Blackstone *256-*257. A Virginia statute provided: "`Where the auditors according to their discretion and judgment shall disallow or abate any article of demand against the commonwealth, and any person shall think himself aggrieved thereby, he shall be at liberty to petition the high court of chancery or the general court, according to the nature of his case, for redress, and such court shall proceed to do right thereon; and a like petition shall be allowed in all other cases to any other person who is entitled to demand against the commonwealth any right in law or equity.'" 9 W. Hening, Statutes at Large: Being a Collection of the Laws of Virginia 536, 540 (18), quoted in Sovereign Immunity and the Right to Petition: |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | (18), quoted in Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, and n. 142 This "petition" was clearly reminiscent of the English petition of right, as was the language "shall proceed to do right thereon," which paralleled the formula of royal approval, "soit droit fait al partie," technically required before a petition of right could be adjudicated. See 3 Blackstone *256; and nn. 143-144. A New York statute similarly authorized petition to the court of chancery by anyone who thought himself aggrieved by the state auditor general's resolution of his account with the State. See An Act Directing a Mode for the Recovery of Debts Due to, and the Settlement of Accounts with, this State, March 30, 1781, *771 in The First Laws of the State of New York 192 (1782 ed., reprinted 1984); see also and n. 145. Pennsylvania not only adopted a law conferring the authority to settle accounts upon the Comptroller General, see Act of Apr. 1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania 19 (1810), but in 1785 provided for appeal from such adjudications to the Pennsylvania Supreme where a jury trial could be had, see ; n. 147. Although in at least one recorded case before the Pennsylvania Supreme the Commonwealth, citing Blackstone, pleaded common law sovereign immunity, see the Supreme of Pennsylvania did not reach this argument, concluding on other grounds that it lacked jurisdiction.[10] Two years after this decision, under the influence of James Wilson, see C. Jacobs, The Eleventh Amendment and Sovereign Immunity 25, and 169, n. 53 (1972), Pennsylvania adopted a new constitution, which provided that "[s]uits may be brought against the commonwealth in such manner, in such courts, and in such cases as the legislature may by law direct." Pa. Const., Art. IX, 11 (1790), reprinted in 8 Sources and Documents of United States at 293; see also[11] *772 Around the time of the Constitutional Convention, then, there existed among the States some diversity of practice with respect to sovereign immunity; but despite a tendency among the state constitutions to announce and declare certain inalienable and natural rights of men and even of the collective people of a State, see, e. g., Pennsylvania Constitution, Art. III (17), 8 Sources and Documents of United States no State declared that sovereign immunity was one of those rights. To the extent that States were thought to possess immunity, it was perceived as a prerogative of the sovereign under common law. And where sovereign immunity was recognized as barring suit, provisions |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | And where sovereign immunity was recognized as barring suit, provisions for recovery from the State were in order, just as they had been at common law in England. C At the Constitutional Convention, the notion of sovereign immunity, whether as natural law or as common law, was not an immediate subject of debate, and the sovereignty of a State in its own courts seems not to have been mentioned. This comes as no surprise, for although the Constitution required state courts to apply federal law, the Framers did not consider the possibility that federal law might bind States, say, in their relations with their employees.[12] In the subsequent *773 ratification debates, however, the issue of jurisdiction over a State did emerge in the question whether States might be sued on their debts in federal court, and on this point, too, a variety of views emerged and the diversity of sovereign immunity conceptions displayed itself. The only arguable support for the 's absolutist view that I have found among the leading participants in the debate surrounding ratification was the one already mentioned, that of Alexander Hamilton in The Federalist No. 81, where he described the sovereign immunity of the States in language suggesting principles associated with natural law: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated [that States might be sued on their debts in federal court] must be merely ideal. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The Federalist No. 81, at 548-549. Hamilton chose his words carefully, and he acknowledged the possibility that at the Convention the States might have surrendered sovereign immunity in some circumstances, but the thrust of his argument was that sovereign immunity was "inherent in the nature of sovereignty."[] An echo of Pufendorf *774 may be heard in his reference to "the conscience of the sovereign";[14] and the universality of the phenomenon of sovereign immunity, which Hamilton claimed ("the general sense and the general practice of mankind"), is a peculiar feature of the natural law conception. |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | mankind"), is a peculiar feature of the natural law conception. The apparent novelty and uniqueness of Hamilton's employment of natural law terminology to explain the sovereign immunity of the States is worth remarking, because it stands in contrast to formulations indicating no particular position on the natural-lawversus-common-law origin, to the more widespread view that sovereign immunity derived from common law, and to the more radical stance that the sovereignty of the people made sovereign immunity out of place in the United States. Hamilton's view is also worth noticing because, in marked contrast to its prominence in the 's opinion today, as well as in Seminole and in cf. Great Northern Life Ins. Co. it found no favor in the early Supreme see infra, at 781. In the Virginia ratifying convention, Madison was among those who debated sovereign immunity in terms of the result it produced, not its theoretical underpinnings. He maintained that "[i]t is not in the power of individuals to call any state into court," 3 Debates on the Federal Constitution 533 (J. Elliot 2d ed. 1863) (hereinafter Elliot's Debates), and thought that the phrase "in which a State shall be a Party" in Article III, 2, must be interpreted in light of that general principle, so that "[t]he only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court." Elliot's Debates 533.[15] John Marshall argued along the same lines against the possibility of federal jurisdiction over private suits against States, and he invoked the immunity of a State in its own courts in support of his argument: "I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court." There was no unanimity among the Virginians either on state- or federal-court immunity, however, for Edmund Randolph anticipated the position he would later espouse as plaintiff's counsel in He contented himself with agnosticism on the significance of what Hamilton had called "the general practice of mankind," and argued that notwithstanding any natural law view of the nonsuability of States, the Constitution permitted suit against a State in federal court: "I think, whatever the law *7 of nations may say, that any doubt respecting the construction that a state may be plaintiff, |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party." 3 Elliot's Debates 573. Randolph clearly believed that the Constitution both could, and in fact by its language did, trump any inherent immunity enjoyed by the States; his view on sovereign immunity in state court seems to have been that the issue was uncertain ("whatever the law of nations may say"). At the furthest extreme from Hamilton, James Wilson made several comments in the Pennsylvania Convention that suggested his hostility to any idea of state sovereign immunity. First, he responded to the argument that "the sovereignty of the states is destroyed" if they are sued by the United States, "because a suiter in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner." 2 For Wilson, "[t]he answer [was] plain and easy: the government of each state ought to be subordinate to the government of the United States." [16] Wilson *777 was also pointed in commenting on federal jurisdiction over cases between a State and citizens of another State: "When this power is attended to, it will be found to be a necessary one. Impartiality is the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing." Finally, Wilson laid out his view that sovereignty was in fact not located in the States at all: "Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of the power as were conceived necessary for the public welfare."[17] While this *778 statement did not specifically address sovereign immunity, it expressed the major premise of what would later become Justice Wilson's position in Chisholm: that because the people, and not the States, are sovereign, sovereign immunity has no applicability to the States. From a canvass of this spectrum of opinion expressed at the ratifying conventions, one thing is certain. No one was espousing an indefeasible, natural law view of sovereign immunity. The controversy over the enforceability of state debts subject to state law produced emphatic support for sovereign immunity |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | subject to state law produced emphatic support for sovereign immunity from eminences as great as Madison and Marshall, but neither of them indicated adherence to any immunity conception outside the common law. D At the close of the ratification debates, the issue of the sovereign immunity of the States under Article III had not been definitively resolved, and in some instances the indeterminacy led the ratification conventions to respond in ways that point to the range of thinking about the doctrine. Several state ratifying conventions proposed amendments and issued declarations that would have exempted States from subjection to suit in federal court.[18] The New York Convention's *779 statement of ratification included a series of declarations framed as proposed amendments, among which was one stating "That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state." 1 Elliot's Debates 329.[19] Whether that amendment was meant to alter or to clarify Article III as ratified is uncertain, but regardless of its precise intent, New York's response to the draft proposed by the Convention of 1787 shows that there was no consensus at all on the question of state suability (let alone on the underlying theory of immunity doctrine). There was, rather, an unclear state of affairs which it seemed advisable to stabilize. The Rhode Island Convention, when it finally ratified on June 16, 1790, called upon its representatives to urge the passage of a list of amendments. This list incorporated language, some of it identical to that proposed by New York, in the following form: "It is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state; but, to remove all doubts or controversies respecting *780 the same, that it be especially expressed, as a part of the Constitution of the United States, that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere with any one of the states in liquidating and discharging the public securities of any one state." Even more clearly than New York's proposal, this amendment appears to have been intended to clarify Article III as reflecting some theory of sovereign immunity, though without indicating which one. Unlike the Rhode Island proposal, which hinted at a clarification of Article III, the Virginia and North Carolina ratifying conventions proposed amendments that by |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | Virginia and North Carolina ratifying conventions proposed amendments that by their terms would have fundamentally altered the content of Article III. The Virginia Convention's proposal for a new Article III omitted entirely the language conferring federal jurisdiction over a controversy between a State and citizens of another State, see 3 and the North Carolina Convention proposed an identical amendment, see 4 These proposals for omission suggest that the conventions of Virginia and North Carolina thought they had subjected themselves to citizen suits under Article III as enacted, and that they wished not to have done so.[20] There is, thus, no suggestion in their resolutions that Article III as drafted was fundamentally at odds with an indefeasible natural law sovereignty, or with a conception that went to the essence of what it meant to be a State. At all events, the state ratifying conventions' felt need for clarification on the question of *781 state suability demonstrates that uncertainty surrounded the matter even at the moment of ratification. This uncertainty set the stage for the divergent views expressed in Chisholm. E If the natural law conception of sovereign immunity as an inherent characteristic of sovereignty enjoyed by the States had been broadly accepted at the time of the founding, one would expect to find it reflected somewhere in the five opinions delivered by the in Yet that view did not appear in any of them. And since a bare two years before Chisholm, the Bill of Rights had been added to the original Constitution, if the Tenth Amendment had been understood to give federal constitutional status to state sovereign immunity so as to endue it with the equivalent of the natural law conception, one would be certain to find such a development mentioned somewhere in the Chisholm writings. In fact, however, not one of the opinions espoused the natural law view, and not one of them so much as mentioned the Tenth Amendment. Not even Justice Iredell, who alone among the Justices thought that a State could not be sued in federal court, echoed Hamilton or hinted at a constitutionally immutable immunity doctrine. Chisholm presented the questions whether a State might be made a defendant in a suit brought by a citizen of another State, and if so, whether an action of assumpsit would lie against it. See[] In representing *782 Chisholm, Edmund Randolph, the Framer[22] and then Attorney General, not only argued for the necessity of a federal forum to vindicate private rights against the States, see but rejected any traditional conception of sovereignty. He said that the sovereignty of the |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | conception of sovereignty. He said that the sovereignty of the States, which he acknowledged, was no barrier to jurisdiction, because "the present Constitution produced a new order of things. It derives its origin immediately from the people The States are in fact assemblages of these individuals who are liable to process," Justice Wilson took up the argument for the sovereignty of the people more vociferously. Building on a conception of sovereignty he had already expressed at the Pennsylvania *7 ratifying convention, see he began by noting what he took to be the pregnant silence of the Constitution regarding sovereignty: "To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves `SOVEREIGN' people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration." As if to contrast his own directness[23] with the Framers' delicacy, the Framer-turned-Justice in no uncertain terms that Georgia was not sovereign with respect to federal jurisdiction (even in a diversity case): "As a Judge of this I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the `People of the United States,' did not surrender the Supreme or sovereign Power to that State; but, as to *784 the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State. " This was necessarily to reject any natural law conception of sovereign immunity as inherently attached to an American State, but this was not all. Justice Wilson went on to identify the origin of sovereign immunity in the feudal system that had, he said, been brought to England and to the common law by the Norman Conquest. After quoting Blackstone's formulation of the doctrine as it had developed in England, he discussed it in the most disapproving terms imaginable: "This last position [that the King is sovereign and no court can have jurisdiction over him] is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in Eng- land, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their conse- quences[.] The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man. " With this rousing conclusion of revolutionary ideology and rhetoric, Justice Wilson left no doubt that he thought the *785 doctrine of sovereign immunity entirely anomalous in the American Republic. Although he did not speak specifically of a State's immunity in its own courts, his view necessarily requires that such immunity would not have been justifiable as a tenet of absolutist natural law. Chief Justice Jay took a less vehement tone in his opinion, but he, too, denied the applicability of the doctrine of sovereign immunity to the States. He the doctrine as an incident of European feudalism, and said that by contrast, "[n]o such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns with- out subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty." -. From the difference between the sovereignty of princes and that of the people, Chief Justice Jay argued, it followed that a State might be sued. When a State sued another State, as all agreed it could do in federal court, all the people of one State sued all the people of the other. "But why it should be more incompatible, that all the people of a State should be sued by one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike." Finally, Chief Justice Jay pointed out, Article III authorized suits between a State and citizens of another State. Although the Chief Justice reserved judgment on whether the United States might be sued by a citizen, given that the courts must rely on |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | by a citizen, given that the courts must rely on the Executive to implement their decisions, he made it clear that this reservation was practical, and not theoretical: "I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course *786 of law, be compelled to do justice, and be sued by individual citizens." Although Chief Justice Jay did not speak specifically to the question of state sovereign immunity in state court, his theory shows that he considered not the States, but the people collectively, to be sovereign; and there is thus no reason to think he would have denied that the people of the Nation could override any state claim to sovereign immunity in a matter committed to the Nation. Justice Cushing's opinion relied on the express language of Article III to hold that Georgia might be sued in federal court. He dealt shortly with the objection that States' sovereignty would be thereby restricted so that States would be reduced to corporations: "As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?" Observing that the Constitution limits the powers of the States in numerous ways, he concluded that "no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole." From the opinion, it is not possible to tell with certainty what Justice Cushing thought about state sovereign immunity in state court, although his introductory remark is suggestive. The case, he wrote, "turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States." It is clear that he had no sympathy for a view of sovereign immunity inherent in statehood and untouchable by national legislative authority. Justice Blair, like Justice Cushing, relied on Article III, and his brief opinion shows that he acknowledged state sovereign immunity, but common law immunity in state court. First, Justice Blair asked hypothetically whether a verdict against the plaintiff would be preclusive if the plaintiff "should renew his suit against the State, in any mode in *787 which she may permit herself to be sued in her own s." Second, he commented that there was no need to require the plaintiff to proceed by way of petition: "When sovereigns |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | the plaintiff to proceed by way of petition: "When sovereigns are sued in their own s, such a method may have been established as the most respectful form of demand; but we are not now in a State-; and if sovereignty be an exemption from suit in any other than the sovereign's own s, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty." It is worth noting that for Justice Blair, the petition brought in state court was properly called a suit. This reflects the contemporary practice of his native Virginia, where, as we have suits as of right against the State were authorized by statute. Justice Blair called sovereignty "an exemption from suit in any other than the sovereign's own s" because he assumed that, in its own courts, a sovereign will naturally permit itself to be sued as of right. Justice Iredell was the only Member of the to hold that the suit could not lie; but if his discussion was farreaching, his reasoning was cautious. Its core was that the could not assume a waiver of the State's common law sovereign immunity where Congress had not expressly passed such a waiver. See Although Justice Iredell added, in what he clearly identified as dictum, that he was "strongly against" any construction of the Constitution "which will admit, under any circumstances, a compulsive suit against a State for the recovery of money," ib[24] he made it equally clear that he *788 understood sovereign immunity as a common law doctrine passed to the States with independence: "No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States *789 have surrendered to them: Of course the part not surrenderred must remain as it did before." This did not mean, of course, that the States had not delegated to Congress the power to |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | the States had not delegated to Congress the power to subject them to suit, but merely that such a delegation would have been necessary on Justice Iredell's view. In sum, then, in Chisholm two Justices (Jay and Wilson), one of whom had been present at the Constitutional Convention, took a position suggesting that States should not enjoy sovereign immunity (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state court; one (Blair) took a cautious position affirming the pragmatic view that sovereign immunity was a continuing common law doctrine and that States would permit suit against themselves as of right; and one (Iredell) expressly thought that state sovereign immunity at common law rightly belonged to the sovereign States. Not a single Justice suggested that sovereign immunity was an inherent and indefeasible right of statehood, and neither counsel for Georgia before the Circuit see n. nor Justice Iredell seems even to have conceived the possibility that the new Tenth Amendment produced the equivalent of such a doctrine. This dearth of support makes it very implausible for today's to argue that a substantial (let alone a dominant) body of thought at the time of the framing understood sovereign immunity to be an inherent right of statehood, adopted or confirmed by the Tenth Amendment.[25] *790 The 's discomfort is evident in its obvious recognition that its natural law or Tenth Amendment conception of state sovereign immunity is insupportable if Chisholm stands. Hence the 's attempt to discount the Chisholm opinions, an enterprise in which I believe it fails. The citing says that the Eleventh Amendment "overruled" Chisholm, ante, 3, but the animadversion is beside the point. The significance of Chisholm is its indication that in 1788 and 1791 it was not generally assumed (indeed, hardly assumed at all) that a State's sovereign immunity from suit in its own courts was an inherent, and not merely a common law, advantage. On the contrary, the testimony of five eminent legal minds of the day confirmed that virtually everyone who understood immunity to be legitimate saw it as a common law prerogative (from which it follows that it was subject to abrogation by Congress as to a matter within Congress's Article I authority). The does no better with its trio of arguments to undercut Chisholm`s legitimacy: that the Chisholm majority "failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted," ante, 1; that "the majority suspected the decision would be unpopular and surprising," ; and |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | suspected the decision would be unpopular and surprising," ; and that "two Members of the majority acknowledged that the United States might well remain immune from suit despite" Article III, ante, 2. These three claims do not, of course, go to the question whether state sovereign immunity was understood to be "fundamental" or "inherent," but in any case, none of them is convincing. *791 With respect to the first, Justice Blair in fact did expressly refer to the practice of state sovereign immunity in state court, and acknowledged the petition of right as an appropriate and normal practice. This aside, the would have a legitimate point if it could show that the Chisholm majority took insufficient account of a body of practice that somehow indicated a widely held absolutist conception of state sovereign immunity untouchable and untouched by the Constitution. But of course it cannot.[26] As for the second point, it is a remarkable doctrine that would hold anticipation of unpopularity the benchmark of constitutional error. In any event, the evidence proffered by the is merely this: that Justice Wilson thought the prerevolutionary conception of sovereignty -455; that Justice Cushing stated axiomatically that the Constitution could always be amended, ; that Chief Justice Jay noted that the losing defendant might still come to understand that sovereign immunity is inconsistent with republicanism, -479; and that Attorney *792 General Randolph admitted that the position he espoused was unpopular not only in Georgia, but also in another State, probably Virginia.[27] These items boil down to the proposition that the Justices knew (as who could not, with such a case before him) that at the ratifying conventions the significance of sovereign immunity had been, as it still was, a matter of dispute. This reality does not detract from, but confirms, the view that the Framers showed no intent to recognize sovereign immunity as an immutably inherent power of the States. As to the third objection, that two Justices noted that the United States might possess sovereign immunity notwithstanding Article III, I that Chief Justice Jay thought this possibility was purely practical, not at all legal, and without any implication for state immunity vis-à-vis federal claims. Justice Cushing was so little troubled by the possibility he raised that he wrote, "If this be a necessary consequence, it must be so," Chisholm, and simply suggested a textual reading that might have led to a different consequence. Nor can the make good on its claim that the enactment of the Eleventh Amendment retrospectively reestablished the view that had already been established at the time of the framing |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | had already been established at the time of the framing (though eluding the perception of all but one Member of the Supreme ), and hence "acted to restore the original constitutional design," ante, 2.[28]*793 There was nothing "established" about the position espoused by Georgia in the effort to repudiate its debts, and the 's implausible suggestion to the contrary merely echoes the brio of its remark in Seminole that Chisholm was "contrary to the well-understood meaning of the Constitution." 7 U.S., at 69 ). The fact that Chisholm was no conceptual aberration is apparent from the ratification debates and the several state requests to rewrite Article III. There was no received view either of the role this sovereign immunity would play in the circumstances of the case or of a conceptual foundation for immunity doctrine at odds with Chisholm`s reading of Article III. As an author on whom the relies, see ante, 4, has it, "there was no unanimity among the Framers that immunity would exist," D. Currie, The Constitution in the Supreme : The First Hundred Years: 1789-1888, p. 19[29] *794 It should not be surprising, then, to realize that although much post-Chisholm discussion was disapproving (as the States saw their escape from debt cut off), the decision had champions "every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue." Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, ; see, e. g., 5 Documentary History of the Supreme n. at 2-252, 252-253, 262-264, -269 (newspaper articles supporting holding in Chisholm); 5 Documentary History of the Supreme The federal citizen-state diversity jurisdiction was settled by the Eleventh Amendment; Article III was not "restored." *795 F It is clear enough that the has no historical predicate to argue for a fundamental or inherent theory of sovereign immunity as limiting authority elsewhere conferred by the Constitution or as imported into the Constitution by the Tenth Amendment. But what if the facts were otherwise and a natural law conception of state sovereign immunity in a State's own courts were implicit in the Constitution? On good authority, it would avail the State nothing, and the would be no less mistaken than it is already in sustaining the State's claim today. The opinion of this that comes closer to embodying the present majority's inherent, natural law theory of sovereign immunity than any other I can find was written by Justice Holmes in[30] I do not, of course, suggest that Justice Holmes *796 was a natural law jurist, see "Natural |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | Justice Holmes *796 was a natural law jurist, see "Natural Law," in O. Holmes, Collected Legal Papers 312 (1920, reprinted 1952) ("The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted as something that must be accepted"). But in he gave not only a cogent restatement of the natural law view of sovereign immunity, but one that includes a feature (omitted from Hamilton's formulation) explaining why even the most absolutist version of sovereign immunity doctrine actually refutes the 's position today: the fails to realize that under the natural law theory, sovereign immunity may be invoked only by the sovereign that is the source of the right upon which suit is brought. Justice Holmes said so expressly: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." *797 His cited authorities stand in the line that today's purports to follow: Hobbes, Bodin, Sir John Eliot, and Baldus de Ubaldis. Hobbes, in the cited work, said this: "The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. For having power to make and repeal laws, he may, when he pleaseth, free himself from that subjection by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound." Leviathan, ch. 26, 2, p. 0. Jean Bodin produced a similar explanation nearly threequarters of a century before Hobbes, see J. Bodin, Les six livres de la république, Bk. 1, ch. 8 (1577); Six Books of the Commonwealth 28 (M. Tooley transl. 1967) ("[T]he sovereign cannot in any way be subject to the commands of another, for it is he who makes law"). Eliot cited Baldus for the crux of the theory: majesty is "a fulness of power subject to noe necessitie, limitted within no rules of publicke Law," 1 J. Eliot, De Jure Maiestatis: or Political Treatise of Government 15 and Baldus himself made the point in observing that no one is bound by his own statute as of necessity, see Commentary of Baldus on the statute Digna vox |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | necessity, see Commentary of Baldus on the statute Digna vox in Justinian's Code 1.14.4, Lectura super Codice folio b (Chapter De Legibus et constitutionibus) (Venice ed. 1496) ("nemo suo statuto ligatur necessitative"). The "jurists who believe in natural law" might have reproved Justice Holmes for his general skepticism about the intrinsic value of their views, but they would not have faulted him for seeing the consequence of their position: if the sovereign is not the source of the law to be applied, sovereign immunity has no applicability. Justice Holmes indeed that in the case of multiple sovereignties, the subordinate *798 sovereign will not be immune where the source of the right of action is the sovereign that is dominant. See 205 U. S., 354 Since the law in this case proceeds from the national source, whose laws authorized by Article I are binding in state courts, sovereign immunity cannot be a defense. After Justice Holmes's logically impeccable theory yields the clear conclusion that even in a system of "fundamental" state sovereign immunity, a State would be subject to suit eo nomine in its own courts on a federal claim. There is no escape from the trap of Holmes's logic save recourse to the argument that the doctrine of sovereign immunity is not the rationally necessary or inherent immunity of the civilians, but the historically contingent, and to a degree illogical, immunity of the common law. But if the admits that the source of sovereign immunity is the common law, it must also admit that the common law doctrine could be changed by Congress acting under the Commerce Clause. It is not for me to say which way the should turn; but in either case it is clear that Alden's suit should go forward. II The 's rationale for today's holding based on a conception of sovereign immunity as somehow fundamental to sovereignty or inherent in statehood fails for the lack of any substantial support for such a conception in the thinking of the founding era. The cannot be counted out yet, however, for it has a second line of argument looking not to a clause-based reception of the natural law conception or even to its recognition as a "background principle," see Seminole 7 U. S., but to a structural basis in the Constitution's creation of a federal system. Immunity, the *799 says, "inheres in the system of federalism established by the Constitution," ante, at 730, its "contours [being] determined by the Founders' understanding, not by the principles or limitations derived from natural law," ante, at 734. Again, "[w]e look both |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | from natural law," ante, at 734. Again, "[w]e look both to the essential principles of federalism and to the special role of the state courts in the constitutional design." Ante, at 748. That is, the believes that the federal constitutional structure itself necessitates recognition of some degree of state autonomy broad enough to include sovereign immunity from suit in a State's own courts, regardless of the federal source of the claim asserted against the State. If one were to read the 's federal structure rationale in isolation from the preceding portions of the opinion, it would appear that the 's position on state sovereign immunity might have been rested entirely on federalism alone. If it had been, however, I would still be in dissent, for the 's argument that state-court sovereign immunity on federal questions is inherent in the very concept of federal structure is demonstrably mistaken. A The National Constitution formally and finally repudiated the received political wisdom that a system of multiple sovereignties constituted the "great solecism of an imperium in imperio," cf. Bailyn, The Ideological Origins of the American Revolution, at 223.[31] Once "the atom of sovereignty" had been split, U. S. Term Limits, 4 U.S. 779, *800 8 the general scheme of delegated sovereignty as between the two component governments of the federal system was clear, and was succinctly stated by Chief Justice Marshall: "In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other."[32] Hence the flaw in the 's appeal to federalism. The State of Maine is not sovereign with respect to the national objectives of the [33] It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided, see and is not contested here. *801 Nor can it be argued that because the State of Maine creates its own court system, it has authority to decide what sorts of claims may be entertained there, and thus in effect to control the right of action in this case. Maine has created state courts of general jurisdiction; once it has done so, the Supremacy Clause of the Constitution, Art. VI, cl. 2, which requires state courts to enforce federal law and state-court judges to be |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | courts to enforce federal law and state-court judges to be bound by it, requires the Maine courts to entertain this federal cause of action. Maine has advanced no "`valid excuse,'" for its courts' refusal to hear federal-law claims in which Maine is a defendant, and sovereign immunity cannot be that excuse, simply because the State is not sovereign with respect to the subject of the claim against it. The 's insistence that the federal structure bars Congress from making States susceptible to suit in their own courts is, then, plain mistake.[34] B It is symptomatic of the weakness of the structural notion proffered by the that it seeks to buttress the argument by relying on "`the dignity and respect afforded a State, *802 which the immunity is designed to protect,'" ante, at 749 ), and by invoking the many demands on a State's fisc, ante, at 750-7. Apparently beguiled by Gilded Era language describing private suits against States as "`neither becoming nor convenient,'" ante, at 748 ), the calls "immunity from private suits central to sovereign dignity," ante, at 715, and assumes that this "dignity" is a quality easily translated from the person of the King to the participatory abstraction of a republican State, see, e. g., ante, at 749 ("[C]ongressional power to authorize private suits against nonconsenting States in their own courts would be offensive to state sovereignty"). The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone's description of royal dignity, which he sets out as a premise of his discussion of sovereignty: "First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects. The law therefore ascribes to the king certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine." 1 Blackstone *241. It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American *803 government's immunity from private suit, it is not dignity.[35] See United It is equally puzzling to hear the say that "federal power to |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | equally puzzling to hear the say that "federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens." Ante, at 750-7. So long as the citizens' will, expressed through state legislation, does not violate valid federal law, the strain will not be felt; and to the extent that state action does violate federal law, the will of the citizens of the United States already trumps that of the citizens of the State: the strain then is not only expected, but necessarily intended. Least of all does the persuade by observing that "other important needs" than that of the "judgment creditor" compete for public money, ante, at 7. The "judgment creditor" in question is not a dunning bill collector, but a citizen whose federal rights have been violated, and a constitutional structure that stints on enforcing federal rights out of an abundance of delicacy toward the States has substituted politesse in place of respect for the rule of law.[36] *804 III If neither theory nor structure can supply the basis for the 's conceptions of sovereign immunity and federalism, then perhaps history might. The apparently believes that because state courts have not historically entertained Commerce Clause based federal-law claims against the States, such an innovation carries a presumption of unconstitutionality. See ante, at 744 (arguing that absence of statutes authorizing suits against States in state court suggests an assumed absence of such power). At the outset, it has to be noted that this approach assumes a more cohesive record than history affords. In a case the labors mightily to distinguish, see ante, at 737,[37] we held that a state-owned railroad could be sued in state court under the Federal Employers' Liability Act, 45 U.S. C. -60, notwithstanding the lack of an express congressional statement, because "`the Eleventh Amendment does not apply in state courts.'" ).[38] But even if the record were less unkempt, the *805 problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally relevant way. It was at one time, though perhaps not from the framing, believed that "Congress' authority to regulate the States under the Commerce Clause" was limited by "certain underlying *806 elements of political sovereignty deemed essential to the States' `separate and independent existence.'" -548 ). On this belief, the preordained balance between state and federal sovereignty was understood to trump the terms of Article |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | federal sovereignty was understood to trump the terms of Article I and preclude Congress from subjecting States to federal law on certain subjects. (From time to time, wage and hour regulation has been counted among those subjects, see infra, at 808.) As a consequence it was rare, if not unknown, for state courts to confront the situation in which federal law enacted under the Commerce Clause provided the authority for a private right of action against a State in state court. The question of state immunity from a Commerce Clause based federal-law suit in state court thus tended not to arise for the simple reason that Acts of Congress authorizing such suits did not exist. Today, however, in light of (overruling National League of 426 U.S. 3 (19)), the law is settled that federal legislation enacted under the Commerce Clause may bind the States without having to satisfy a test of undue incursion into state sovereignty. "[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the `States as States' is one of process rather than one of result." Because the commerce power is no longer thought to be circumscribed, the dearth of prior private federal claims entertained against the States in state courts does not tell us anything, and reflects nothing but an earlier and less expansive application of the commerce power. Least of all is it to the point for the to suggest that because the Framers would be surprised to find States subjected to a federal-law suit in their own courts under the commerce power, the suit must be prohibited by the Constitution. See ante, at 741-743 (arguing on the basis of the "historical record" that the Constitution would not have been adopted if it had been understood to allow suit against States *807 in state court under federal law). The Framers' intentions and expectations count so far as they point to the meaning of the Constitution's text or the fair implications of its structure, but they do not hover over the instrument to veto any application of its principles to a world that the Framers could not have anticipated. If the Framers would be surprised to see States subjected to suit in their own courts under the commerce power, they would be astonished by the reach of Congress under the Commerce Clause generally. The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes. But the Framers' surprise at, say, the FLSA, or the Federal Communications Commission, |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | surprise at, say, the FLSA, or the Federal Communications Commission, or the Federal Reserve Board is no threat to the constitutionality of any one of them, for a very fundamental reason: "[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been fore completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." "`We must never forget,' said Mr. Chief Justice Marshall in McCulloch, [4 Wheat., at] 407, `that it is a Constitution we are expounding.' Since then this has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed." *808 IV A If today's decision occasions regret at its anomalous versions of history and federal theory, it is the more regrettable in being the second time the has suddenly changed the course of prior decision in order to limit the exercise of authority over a subject now concededly within the Article I jurisdiction of the Congress. The FLSA, which requires employers to pay a minimum wage, was first enacted in 1938, with an exemption for States acting as employers. See 392 U.S. 1, In 1966, it was amended to remove the state employer exemption so far as it concerned workers in hospitals, institutions, and schools. See and n. 6. In Wirtz, the upheld the amendment over the dissent's argument that extending the FLSA to these state employees was "such a serious invasion of state sovereignty protected by the Tenth Amendment that it is not consistent with our constitutional federalism." In 1974, Congress again amended the FLSA, this time "extend[ing] the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions." National League of 426 U. S., at 6. This time the went the other way: in National League of the held the extension of the Act to these employees an unconstitutional infringement of state sovereignty, ; for good measure, the overturned Wirtz, dismissing its reasoning as no longer authoritative, see -855. But National League of |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | as no longer authoritative, see -855. But National League of was not the last word. In decided some nine years later, the addressed the question whether a municipally owned mass-transit *809 system was exempt from the 536. In holding that it was not, the overruled National League of see this time taking the position that Congress was not barred by the Constitution from binding the States as employers under the Commerce Clause, As already mentioned, the held that whatever protection the Constitution afforded to the States' sovereignty lay in the constitutional structure, not in some substantive guarantee. [39] remains good law, its reasoning has not been repudiated, and it has not been challenged here. The FLSA has not, however, fared as well in practice as it has in theory. The in Seminole created a significant impediment to the statute's practical application by rendering its damages provisions unenforceable against the States by private suit in federal court. Today's decision blocking private actions in state courts makes the barrier to individual enforcement a total one. *810 B The might respond to the charge that in practice it has vitiated by insisting, as counsel for Maine argued, Brief for Respondent 11-12, that the United States may bring suit in federal court against a State for damages under the FLSA, on the authority of United 143 U.S. 6, See also Seminole 7 U. S., at 71, n. 14. It is true, of course, that the FLSA does authorize the Secretary of Labor to file suit seeking damages, see 29 U.S. C. 6(c), but unless Congress plans a significant expansion of the National Government's litigating forces to provide a lawyer whenever private litigation is barred by today's decision and Seminole the allusion to enforcement of private rights by the National Government is probably not much more than whimsy. Facing reality, Congress specifically found, as long ago as 1974, "that the enforcement capability of the Secretary of Labor is not alone sufficient to provide redress in all or even a substantial portion of the situations where compliance is not forthcoming voluntarily." S. Rep. No. 93-690, p. 27 (1974). One hopes that such voluntary compliance will prove more popular than it has in Maine, for there is no reason today to suspect that enforcement by the Secretary of Labor alone would likely prove adequate to assure compliance with this federal law in the multifarious circumstances of some 4.7 million employees of the 50 States of the Union.[40] The point is not that the difficulties of enforcement should drive the 's decision, but simply that where Congress has |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | drive the 's decision, but simply that where Congress has created a private right to damages, it is implausible to claim that enforcement by a public authority without any incentive beyond its general enforcement power will ever afford the private right a traditionally adequate remedy. No *811 one would think the remedy adequate if private tort claims against a State could only be brought by the National Government: the tradition of private enforcement, as old as the common law itself, is the benchmark. But wage claims have a lineage of private enforcement just as ancient, and a claim under the FLSA is a claim for wages due on work performed. Denying private enforcement of an FLSA claim is thus on par with closing the courthouse door to state tort victims unaccompanied by a lawyer from Washington. So there is much irony in the 's profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a remedy. Lord Chief Justice Holt could state this as an unquestioned proposition already in 1702, as he did in v. White, 6 Mod. 45, 53-54, 87 Eng. Rep. 808, 815 (Q. B.): "If an act of parliament be made for the benefit of any person, and he is hindered by another of that benefit, by necessary consequence of law he shall have an action; and the current of all the books is so" (citation omitted).[41]*812 Blackstone considered it "a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded." 3 Blackstone *23. The generation of the Framers thought the principle so crucial that several States put it into their constitutions.[42] And when Chief Justice Marshall asked about Marbury: "If he has a right, and that right has been violated, do the laws of his country afford him a remedy?," 1 Cranch 7, the question was rhetorical, and the answer clear: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." Yet today the has no qualms about saying frankly that the |
Justice Souter | 1,999 | 20 | dissenting | Alden v. Maine | https://www.courtlistener.com/opinion/118318/alden-v-maine/ | today the has no qualms about saying frankly that the federal right to damages afforded by Congress under the FLSA cannot create a concomitant private remedy. The right was "made for the benefit of" petitioners; they have been "hindered by another of that benefit"; but despite what has long been understood as the "necessary consequence of law," they have no action, cf. 87 Eng. Rep., at 815. It will not do for the to respond that a remedy was never available where the right in question was against the sovereign. A State is not the sovereign when a federal claim is pressed against it, and even the English sovereign opened itself to recovery and, *8 unlike Maine, provided the remedy to complement the right. To the Americans of the founding generation it would have been clear (as it was to Chief Justice Marshall) that if the King would do right, the democratically chosen Government of the United States could do no less.[43] The Chief Justice's *814 contemporaries might well have reacted to the 's decision today in the words spoken by Edmund Randolph when responding to the objection to jurisdiction in Chisholm: "[The Framers] must have viewed human rights in their essence, not in their mere form." 2 Dall., V The has swung back and forth with regrettable disruption on the enforceability of the FLSA against the States, but if the present majority had a defensible position one could at least accept its decision with an expectation of stability ahead. As it is, any such expectation would be naïve. The resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking. The began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the 's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting. |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | A provision of the federal bank fraud statute, 18 U.S. C. makes criminal a knowing scheme to obtain property owned by, or in the custody of, a bank “by means of false or fraudulent pretenses, representations, or prom- ises.” The question presented is whether the Government must prove that a defendant charged with violating that provision intended to defraud a bank. We hold that the Government need not make that showing. I Petitioner Kevin Loughrin executed a scheme to convert altered or forged checks into cash. Pretending to be a Mormon missionary going door-to-door in a neighborhood in Salt Lake City, he rifled through residential mailboxes and stole any checks he found. Sometimes, he washed, bleached, ironed, and dried the checks to remove the existing writing, and then filled them out as he wanted; other times, he did nothing more than cross out the name of the original payee and add another. And when he was lucky enough to stumble upon a blank check, he completed it and forged the accountholder’s signature. Over several months, Loughrin made out six of these checks to the 2 LOUGHRIN v. UNITED STATES Opinion of the Court retailer Target, for amounts of up to $0. His modus operandi was to go to a local store and, posing as the accountholder, present an altered check to a cashier to purchase merchandise. After the cashier accepted the check (which, remarkably enough, happened time after time), Loughrin would leave the store, then turn around and walk back inside to return the goods for cash. Each of the six checks that Loughrin presented to Tar- get was drawn on an account at a federally insured bank, including Bank of America and Wells Fargo. Employees in Target’s back office identified three of the checks as fraudulent, and so declined to submit them for payment. Target deposited the other three checks. The bank refused payment on one, after the accountholder notified the bank that she had seen a man steal her mail. Target appears to have received payment for the other two checks, though the record does not conclusively establish that fact. See Brief for United States 6, 7, n. The Federal Government eventually caught up with Loughrin and charged him with six counts of committing bank fraud—one for each of the altered checks presented to Target. The federal bank fraud statute, 18 U.S. C. provides as follows: “Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, as- sets, securities, or other |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | of the moneys, funds, credits, as- sets, securities, or other property owned by, or un- der the custody or control of, a financial institution, by means of false or fraudulent pretenses, represen- tations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 0 years, or both.”1 —————— 1A “financial institution,” as defined in 18 U.S. C. includes a Cite as: 57 U. S. (2014) Opinion of the Court Ruling (for a reason not material here) that Circuit prece- dent precluded convicting Loughrin under the statute’s first clause, the District Court allowed the case to go to the jury on the statute’s second, The court instructed the jury that it could convict Loughrin under that clause if, in offering the fraudulent checks to Target, he had “knowingly executed or at- tempted to execute a scheme or artifice to obtain money or property from the [banks on which the checks were drawn] by means of false or fraudulent pretenses, representations, or promises.” App. 7. Loughrin asked as well for another instruction: The jury, he argued, must also find that he acted with “intent to defraud a financial institution.” App. to Pet. for Cert. 4a. The court, however, declined to give that charge, and the jury convicted Loughrin on all six counts. The United States Court of Appeals for the Tenth Cir- cuit affirmed. See As relevant here, it rejected Loughrin’s argument that “a conviction under requires proof that he intended to defraud the banks on which the [altered] checks had been drawn.” That intent, the court reasoned, is necessary only under the bank fraud law’s first clause. The court acknowledged that under its interpretation, “cast[s] a wide net for bank fraud liability,” but concluded that such a result is “dictated by the plain language of the statute.” We granted certiorari, 571 U. S. to resolve a Circuit split on whether requires the Government to show that a defendant intended to defraud a federally insured bank or other financial institution.2 We now —————— federally insured bank of the kind involved here. 2 Compare ( does not require intent to defraud a bank); United States v. Everett, 270 F.d 986, 991 (CA6 2001) with United States v. Thomas, 15 F.d 190, 197 (CA 2002) ( requires such intent); United 4 LOUGHRIN v. UNITED STATES Opinion of the Court affirm the Tenth Circuit’s decision. II We begin with common ground. All parties agree, as do we and the Courts of Appeals, that requires that a defendant “knowingly execute[ ], or attempt[ ] to exe- cute, a scheme or artifice” with |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | attempt[ ] to exe- cute, a scheme or artifice” with at least two elements. First, the clause requires that the defendant intend “to obtain any of the moneys or other property owned by, or under the custody or control of, a financial institution.” (We refer to that element, more briefly, as intent “to ob- tain bank property.”) Brief for United States 11, 17, 20, 22, 2; Brief for Petitioner 0–1. And second, the clause requires that the envisioned result—i.e., the obtaining of bank property—occur “by means of false or fraudulent pretenses, representations, or promises.” See Brief for United States 21–22; Reply Brief 18–19. Loughrin does not contest the jury instructions on either of those two elements. Nor does he properly challenge the sufficiency of the evidence supporting them here. The single question presented is whether the Govern- ment must prove yet another element: that the defendant —————— ; United States v. Jacobs, Loughrin argued to the jury that the evidence failed to show that he intended to obtain bank property: He claimed that once he “obtained cash from Target, he was indifferent to whether Target ever sub- mitted the check to a bank or whether a bank ever made payment on it.” Brief for Petitioner 2; see Tr. –5; App. to Pet. for Cert. 46a. The jury rejected that contention, as did the District Court on a motion for judgment of acquittal. See Record 168. In his appeal, Loughrin waived the argument by conceding that if the District Court correctly instructed the jury on ’s elements, “then there was sufficient evidence to convict.” Appellant’s Opening Brief in No. 11–4158 (CA10), p. 4. And although Loughrin’s briefs to this Court attempt to cast doubt on the jury’s finding that he intended to obtain bank property, see Brief for Petitioner 0–2, that issue is not “fairly included” in the question his certiorari petition presented, Sup. Ct. R. 14.1(a). Cite as: 57 U. S. (2014) 5 Opinion of the Court intended to defraud a bank. As Loughrin describes it, that element would compel the Government to show not just that a defendant intended to obtain bank property (as the jury here found), but also that he specifically intended to deceive a bank. See Reply Brief 17. And that difference, Loughrin claims, would have mattered in this case, be- cause his intent to deceive ran only to Target, and not to any of the banks on which his altered checks were drawn. But the text of precludes Loughrin’s argument. That clause focuses, first, on the scheme’s goal (obtaining bank property) and, second, on the |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | the scheme’s goal (obtaining bank property) and, second, on the scheme’s means (a false representation). We will later address how the “means” component of imposes certain inherent limits on its reach. See infra, at 11–14. But nothing in the clause additionally demands that a defendant have a specific intent to deceive a bank. And indeed, imposing that requirement would prevent from applying to a host of cases falling within its clear terms. In particular, the clause covers property “owned by” the bank but in someone else’s custody and control (say, a home that the bank entrusted to a real estate company after foreclosure); thus, a person violates ’s plain text by deceiving a non-bank custodian into giving up bank property that it holds. Yet under Loughrin’s view, the clause would not apply to such a case except in the (presumably rare) cir- cumstance in which the fraudster’s intent to deceive ex- tended beyond the custodian to the bank itself. His pro- posed inquiry would thus function as an extra-textual limit on the clause’s compass. And Loughrin’s construction of becomes yet more untenable in light of the rest of the bank fraud stat- ute. That is because the first clause of as all agree, includes the requirement that a defendant intend to “de- fraud a financial institution”; indeed, that is whole sum and substance. See Brief for United States 18; Brief for Petitioner 8. To read the next clause, following 6 LOUGHRIN v. UNITED STATES Opinion of the Court the word “or,” as somehow repeating that requirement, even while using different words, is to disregard what “or” customarily means. As we have recognized, that term’s “ordinary use is almost always disjunctive, that is, the words it connects are to be given separate meanings.” United States v. Woods, 571 U. S. (slip op., at 14). Yet Loughrin would have us construe the two entirely distinct statutory phrases that the word “or” joins as containing an identical element. And in doing so, his interpretation would make second clause a mere subset of its first: If, that is, implicitly required intent to defraud a bank, it would apply only to conduct already falling within Loughrin’s construction thus effectively reads “or” to mean “including”—a defini- tion foreign to any dictionary we know of. As that account suggests, Loughrin’s view collides as well with more general canons of statutory interpretation. We have often noted that when “Congress includes partic- ular language in one section of a statute but omits it in another”—let alone in the very next provision—this Court “presume[s]” that Congress intended a difference in |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | next provision—this Court “presume[s]” that Congress intended a difference in mean- ing. (citation omitted). And here, as just stated, overriding that presumption would render second clause superfluous. Loughrin’s view thus runs afoul of the “car- dinal principle” of interpretation that courts “must give effect, if possible, to every clause and word of a statute.” 5 U.S. 62, (citation omitted).4 —————— 4 Loughrin responds that our interpretation of the statute creates a converse problem of superfluity: Clause (2), he says, would emerge so broad as to wholly swallow Clause (1). See Reply Brief 7. But that is not right. The Courts of Appeals, for example, have unanimously agreed that the Government can prosecute check kiting (i.e., writing checks against an account with insufficient funds in a way designed to keep them from bouncing) only under Clause (1), because such schemes Cite as: 57 U. S. (2014) 7 Opinion of the Court III Loughrin makes two principal arguments to avoid the import of the statute’s plain text. First, he relies on this Court’s construction of comparable language in the federal mail fraud statute to assert that Congress intended merely to explicate the scope of prohi- bition on scheming to defraud a bank, rather than to cover any additional conduct. And second, he contends that unless we read the second clause in that duplicative way, its coverage would extend to a vast range of fraudulent schemes, thus intruding on the historic criminal jurisdic- tion of the States. Neither argument is without force, but in the end, neither carries the day. A “[D]espite appearances,” Loughrin avers, has no independent meaning: It merely specifies part of what already encompasses. Brief for Petitioner 8. To support that concededly counterintuitive argument, Loughrin invokes our decision in interpreting similar language in the mail fraud statute, 18 U.S. C. That law, which served as a model for see prohibits using the mail to further “any scheme or artifice to defraud, or for obtain- ing money or property by means of false or fraudulent pretenses, representations, or promises.” Loughrin rightly explains that, despite the word “or,” McNally understood that provision as setting forth just one offense—using the mails to advance a scheme to defraud. The provision’s —————— do not involve any false representations. See Tr. of Oral Arg. 46–47; see, e.g., United ). No doubt, the overlap between the two clauses is substantial on our read- ing, but that is not uncommon in criminal statutes. See, e.g., Hubbard v. United States, 8 LOUGHRIN v. UNITED STATES Opinion of the Court back half, we held, merely codified a prior judicial decision |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | back half, we held, merely codified a prior judicial decision applying the front half: In other words, the back clarified that the front included certain conduct, rather than doing independent –59. According to Loughrin, we should read the bank fraud statute in the same way. But the two statutes, as an initial matter, have notable textual differences. The mail fraud law contains two phrases strung together in a single, unbroken sentence. By contrast, two clauses have separate numbers, line breaks before, between, and after them, and equiva- lent indentation—thus placing the clauses visually on an equal footing and indicating that they have separate meanings. The legislative structure thus reinforces the usual (even if not McNally’s) understanding of the word “or” as meaning well, “or”—rather than, as Loughrin would have it, “including.” Moreover, Loughrin’s reliance on McNally encounters a serious chronological problem. Congress passed the bank fraud statute in 1984, three years before we decided that case. And at that time, every Court of Appeals to have addressed the issue had concluded that the two relevant phrases of the mail fraud law must be read “in the dis- junctive” and “construed independently.” (citing, e.g., United (CA 1984); United (CA8 197)). McNally disagreed, eschewing the most natural reading of the text in favor of evidence it found in the drafting history of the statute’s money-or-property clause. But the Congress that passed the bank fraud statute could hardly have predicted that McNally would overturn the lower courts’ uniform reading. We thus see no reason to doubt that in enacting Congress said what it meant and meant what it said, see Connecticut Nat. —i.e., that it both said “or” and meant “or” in the usual sense. Cite as: 57 U. S. (2014) 9 Opinion of the Court And a peek at history, of the kind McNally found deci- sive, only cuts against Loughrin’s reading of the bank fraud statute. According to McNally, Congress added the mail fraud statute’s second, money-or-property clause merely to affirm a decision of ours interpreting the ban on schemes “to defraud”: The second clause, McNally rea- soned, thus worked no substantive change in the law. See –59 ). By con- trast, Congress passed the bank fraud statute to disap- prove prior judicial rulings and thereby expand federal criminal law’s scope—and indeed, partly to cover cases like Loughrin’s. One of the decisions prompting enact- ment of the bank fraud law, United States v. Maze, 414 U.S. 95 (1974), involved a defendant who used a stolen credit card to obtain food and lodging. (Substitute a check for a credit card and Maze |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | lodging. (Substitute a check for a credit card and Maze becomes Loughrin.) The Gov- ernment brought charges of mail fraud, relying on post- purchase mailings between the merchants and issuing bank to satisfy the statute’s mailing element. But the Court held those mailings insufficiently integral to the fraudulent scheme to support the conviction. See at 402. Hence, Maze created a “serious gap[ ] in Federal jurisdiction over frauds against banks.” S. Rep. No. 98– 2, p. 77 Congress passed to fill that gap, enabling the Federal Government to prosecute fraudsters like Maze and Loughrin. We will not deprive that enact- ment of its full effect because McNally relied on different history to adopt a counter-textual reading of a similar provision. B Loughrin also appeals to principles of federalism to support his proffered construction. Unless we read as requiring intent to defraud a bank, Loughrin contends, the provision will extend to every fraud, no 10 LOUGHRIN v. UNITED STATES Opinion of the Court matter how prosaic, happening to involve payment with a check—even when that check is perfectly valid. Consider, for example, a garden-variety con: A fraudster sells some- thing to a customer, misrepresenting its value. There are countless variations, but let’s say the fraudster passes off a cheap knock-off as a Louis Vuitton handbag. The victim pays for the bag with a good check, which the criminal cashes. Voila!, Loughrin says, bank fraud has just hap- pened—unless we adopt his narrowing construction. After all, the criminal has intended to “obtain property under the custody or control of ” the bank (the money in the victim’s checking account), and has made “false or fraudulent representations” (the lies to the victim about the handbag).5 But if the bank fraud statute were to encompass all such schemes, Loughrin continues, it would interfere with matters “squarely within the tradi- tional criminal jurisdiction of the state courts.” Brief for Petitioner We should avoid such a “sweeping expan- sion of federal criminal” law, he concludes, by reading just like as requiring intent to defraud a bank. Reply Brief ). We agree with this much of what Loughrin argues: Unless the text requires us to do so, we should not con- strue as a plenary ban on fraud, contingent only on use of a check (rather than cash). As we have often (and recently) repeated, “we will not be quick to assume —————— 5 One might think the Federal Government would never use the bank fraud statute to prosecute such ordinary frauds just because they happen to involve payment by check rather than cash. But in fact, |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | involve payment by check rather than cash. But in fact, the Government has brought a number of cases alleging violations of on that theory (so far, it appears, unsuccessfully). See, e.g., Thomas, (a home health care worker got a valid check from a patient to buy groceries, but then cashed the check and pocketed the money); United (an employee filed fake invoices with her employer, causing the company to issue valid checks to her friend for services never rendered). Cite as: 57 U. S. (2014) 11 Opinion of the Court that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bond v. United States, 572 U. S. (2014) (slip op., at 1) (quoting United States v. Bass, U.S. 6, 49 (1971)); see 51 U.S., at (“We resist the Government’s reading because it invites us to approve a sweeping expansion of federal criminal juris- diction in the absence of a clear statement by Congress”); 5 U.S. 848, Just such a rebalancing of criminal jurisdiction would follow from interpreting to cover every pedestrian swindle happening to involve payment by check, but in no other way affecting financial institutions. Indeed, even the Government expresses some mild discomfort with “federalizing frauds that are only tangentially related to the banking system.” Brief for United States 41. But in claiming that we must therefore recognize an invisible element, Loughrin fails to take account of a significant textual limitation on ’s reach. Under that clause, it is not enough that a fraudster scheme to obtain money from a bank and that he make a false statement. The provision as well includes a relational component: The criminal must acquire (or attempt to acquire) bank property “by means of ” the misrepresenta- tion. That phrase typically indicates that the given result (the “end”) is achieved, at least in part, through the speci- fied action, instrument, or method (the “means”), such that the connection between the two is something more than oblique, indirect, and incidental. See, e.g., Webster’s Third New International Dictionary 199 (2002) (defining “by means of ” as “through the instrumentality of: by the use of as a means”); 9 Oxford English Dictionary 516 (2d ed. 1989) (defining “means” as “[a]n instrument, agency, method, or course of action, by the employment of which some object is or may be attained, or which is concerned in bringing about some result”). In other words, not every 12 LOUGHRIN v. UNITED STATES Opinion of the Court but-for cause will do. If, to pick an example out of a hat, Jane traded in |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | pick an example out of a hat, Jane traded in her car for money to take a bike trip cross- country, no one would say she “crossed the Rockies by means of a car,” even though her sale of the car somehow figured in the trip she took. The relation between those things would be (as the Government puts it) too “tangen- tial[ ]” to make use of the phrase at all appropriate. Brief for United States 41. Section 144(2)’s “by means of ” language is satisfied when, as here, the defendant’s false statement is the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control. That occurs, most clearly, when a defendant makes a misrepre- sentation to the bank itself—say, when he attempts to cash, at the teller’s window, a forged or altered check. In that event, the defendant seeks to obtain bank property by means of presenting the forgery directly to a bank em- ployee. But no less is the counterfeit check the “means” of obtaining bank funds when a defendant like Loughrin offers it as payment to a third party like Target.6 After all, a merchant accepts a check only to pass it along to a bank for payment; and upon receipt from the merchant, that check triggers the disbursement of bank funds just as if presented by the fraudster himself. So in either case, the forged or altered check—i.e., the false statement— serves in the ordinary course as the means (or to use other words, the mechanism or instrumentality) of obtaining bank property. To be sure, a merchant might detect the —————— 6 The Government in such a case may, of course, face the separate claim that the defendant did not intend to obtain bank property at all: As noted earlier, Loughrin argued this point to the jury, contending (unsuccessfully) that he merely wanted to get cash from Target. See n. All we say here, for the reasons next stated, is that when the defendant has the requisite intent to acquire bank property, his presentation of a forged or altered check to a third party satisfies ’s “means” requirement. Cite as: 57 U. S. (2014) 1 Opinion of the Court fraud (as Target sometimes did) and decline to submit the forged or altered check to the bank. But that is to say only that the defendant’s scheme to obtain bank property by means of a false statement may not succeed. And we have long made clear that such failure is irrelevant in a bank fraud case, because punishes not |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | is irrelevant in a bank fraud case, because punishes not “completed frauds,” but instead fraudulent “scheme[s].” Neder, 527 U.S., at By contrast, the cases Loughrin hopes will unnerve us— exemplified by the handbag swindle—do not satisfy ’s “means” requirement.7 Recall that in such a case the check is perfectly valid; so the check itself is not (as it was here) a false or fraudulent means of obtaining bank money. And the false pretense that has led, say, the handbag buyer to give a check to the fraudster has noth- ing to do with the bank that will cash it: No one would dream of passing on to the bank (as Target would forward a forged check) the lie that a knock-off is a Louis Vuitton. The bank’s involvement in the scheme is, indeed, wholly fortuitous—a function of the victim’s paying the fraudster by (valid) check rather than cash. Of course, the bank would not have disbursed funds had the misrepresentation never occurred, and in that sense, the lie counts as a but- for cause of the bank’s payment. But as we have said, ’s “by means of ” language requires more, see at 11–12: It demands that the defendant’s false statement is the mechanism naturally inducing a bank (or custodian) to part with its money. And in cases like the handbag swindle, where no false statement will ever go to a financial institution, the fraud is not the means of ob- taining bank property.8 —————— 7 Even the Government, we note, acknowledges that is rea- sonably read to exclude such cases from its coverage. See Brief for United States 40–44; Tr. of Oral Arg. 4–47. 8 JUSTICE SCALIA takes issue with our limitation of contend- ing first that the fraudster’s “indifferen[ce] to the victim’s method of 14 LOUGHRIN v. UNITED STATES Opinion of the Court The premise of Loughrin’s federalism argument thus collapses. He claims that we must import an unstated element into to avoid covering run-of-the-mill frauds, properly of concern only to States. But in fact, the text of already limits its scope to deceptions that have some real connection to a federally insured bank, and thus implicate the pertinent federal interest. See S. Rep. No. 98–2, at 78 (noting that federal “jurisdiction is based on the fact that the victim of the offense is a federally —————— payment” does not “cause what is a means not to be a means.” Post, at 2– (opinion concurring in part and concurring in judgment) (emphasis deleted). To illustrate the point, he offers an example: Someone “ob- tain[s] 7-Eleven coffee by means |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | offers an example: Someone “ob- tain[s] 7-Eleven coffee by means of [his] two dollars” even if he went to 7-Eleven rather than Sheetz only because it happened to be the closest. Post, at But that objection is based on a misunderstanding of our opinion. The “by means of” phrase calls for an inquiry into the direct- ness of the relationship between means and ends, not the fraudster’s subjective intent. (We take it JUSTICE SCALIA agrees; he recognizes that “not every but-for cause of an act is a cause ‘by means of’ which the act has occurred.” Post, at 2.) And we concur with the bottom line of JUSTICE SCALIA’s example: There, the means (the two dollars) is the thing that achieves the specified end (getting the cup of 7-Eleven coffee). By contrast, for the reasons elaborated above, the misstate- ment in our handbag hypothetical is not the mechanism by which the fraudster obtains bank property, given that the lie will never reach the bank. And so JUSTICE SCALIA tries another example, this one (involving Little Bobby) contesting our view of directness. Post, at –4. But such hypotheticals mostly show that what relationships count as close enough to satisfy the phrase “by means of” will depend almost entirely on context. (We might counter with some examples of our own, but we fear that would take us down an endless rabbit hole.) Language like “by means of” is inherently elastic: It does not mean one thing as to all fact patterns—and certainly not in all statutes, given differences in context and purpose. All we say here is that the phrase, as used in is best read, for the federalism-related reasons we have given, see at 9–11, as drawing a line at frauds that have some real connection to a federally insured bank—namely, frauds in which a false statement will naturally reach such a bank (or a custodian of the bank’s property). Cite as: 57 U. S. (2014) 15 Opinion of the Court controlled or insured institution”). And Loughrin’s own crime, as we have explained, is one such scheme, because he made false statements, in the form of forged and al- tered checks, that a merchant would, in the ordinary course of business, forward to a bank for payment. See at 12–1. We therefore reject Loughrin’s reading of and his challenge to his conviction.9 For the reasons stated, we affirm the judgment of the Tenth Circuit. It is so ordered. —————— 9 As a last-gasp argument, Loughrin briefly asserts that at least requires the Government to prove that the defendant’s scheme created a |
Justice Kagan | 2,014 | 3 | majority | Loughrin v. United States | https://www.courtlistener.com/opinion/2679833/loughrin-v-united-states/ | the Government to prove that the defendant’s scheme created a risk of financial loss to the bank. See Brief for Petitioner 6– 40. But once again, nothing like that element appears in the clause's text. Indeed, the broad language in describing the property at issue—“property owned by or under the custody or control of” a bank— appears calculated to avoid entangling courts in technical issues of banking law about whether the financial institution or, alternatively, a depositor would suffer the loss from a successful fraud. See United 699 F.d 74, (Lynch, J., concurring in part and concurring in judgment in part). And Loughrin’s argument fits poorly with our prior holding that the gravamen of is the “scheme,” rather than “the completed fraud,” and that the offense therefore does not require “damage” or “reliance.” ; see at 1. Cite as: 57 U. S. (2014) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 1–16 KEVIN LOUGHRIN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [June 2014] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment. |
Justice Blackmun | 1,982 | 11 | majority | United States v. Johnson | https://www.courtlistener.com/opinion/110754/united-states-v-johnson/ | In this Court held that the Fourth Amendment[1] prohibits the police from making a warrantless and nonconsensual entry into a suspect's *539 home to make a routine felony arrest. The question before us in the present case is whether the rule announced in Payton applies to an arrest that took place before Payton was decided. I Special Agents Hemenway and Pickering of the United Secret Service suspected respondent Raymond Eugene Johnson and his codefendant, Oscar Joseph Dodd, of attempting to negotiate a misdelivered United Treasury check.[2] Proceeding without an arrest warrant, on May 5, 1977, the two agents went to respondent's Los Angeles home and waited outside. Shortly thereafter, respondent and his wife arrived and entered the house. The agents drew their weapons, approached the doorway and knocked, identifying themselves by fictitious names. When respondent opened the door, he saw the two agents with their guns drawn and their badges raised. Respondent permitted the agents to enter the house. While one agent stood with respondent in the living room, the other searched the premises. The agents then advised respondent of his constitutional rights and interrogated him. When respondent revealed his involvement in the taking of the misdelivered check, the agents formally arrested him. Respondent later signed a written statement admitting his involvement with the check. Before trial, respondent sought to suppress his oral and written statements as fruits of an unlawful arrest not supported *540 by probable cause. The United District Court for the Central District of California found respondent's arrest to be proper and admitted the evidence. App. 7. A jury then convicted respondent of aiding and abetting obstruction of correspondence, in violation of 18 U.S. C. 2 and 1702.[3] The imposition of respondent's sentence was suspended in favor of five years' probation. By an unreported opinion filed December 19, 1978, the United Court of Appeals for the Ninth Circuit affirmed the judgment of conviction. Acknowledging that "[i]t certainly would have been preferable had the agents obtained a warrant" for respondent's arrest before entering his residence, the court nonetheless ruled that "if probable cause exists for the arrest, [respondent's] constitutional rights were not violated by the warrantless arrest, even though there may have been time [for the agents] to have obtained a warrant for his arrest." App. to Pet. for Cert. 2a-27a. On April 15, 1980, while respondent's petition for rehearing was still pending before the Ninth Circuit, this Court decided [4] On September 2, *541 1980, the Ninth Circuit granted respondent's petition for rehearing, withdrew its prior opinion, and on the strength of Payton, now reversed the judgment |
Justice Blackmun | 1,982 | 11 | majority | United States v. Johnson | https://www.courtlistener.com/opinion/110754/united-states-v-johnson/ | and on the strength of Payton, now reversed the judgment of conviction. "In light of the strong language by the Court in Payton emphasizing the special protection the Constitution affords to individuals within their homes," the Court of Appeals held that "the warrantless arrest of Johnson, while he stood within his home, after having opened the door in response to false identification by the agents, constituted a violation of his Fourth Amendment rights." The Government petitioned for rehearing, arguing that the principles of Payton should not apply retroactively to an arrest that had occurred before Payton was decided. The Court of Appeals disagreed, denied the petition for rehearing, and amended its opinion to clarify that Payton did apply retroactively. App. to Pet. for Cert. a.[5] The Government sought review in this Court. We granted certiorari to consider the retrospective effect, if any, of the Fourth Amendment rule announced in Payton.[] *542 II "[T]he federal constitution has no voice upon the subject" of retrospectivity. Great Northern R. Before 195, when this Court decided citing and Chicot County Drainage[7] In Linkletter, however, the Court concluded "that the Constitution neither prohibits nor requires [that] retrospective effect" be given to any "new" constitutional Since Linkletter, the Court's announcement of a constitutional rule in the realm of criminal procedure has frequently been followed by a separate decision explaining whether, and to what extent, that rule applies to past, pending, and future cases. See generally Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, Linkletter itself addressed the question whether the Fourth Amendment exclusionary rule of should apply to state convictions that had become final before Mapp was decided.[8] At the outset, the Linkletter Court noted that cases still pending on direct review when Mapp was handed down had already received the *543 benefit of Mapp's See n. 4, citing ; ; and This limited retrospective application of Mapp was consistent with the common-law rule, recognized in both civil and criminal litigation, "that a change in law will be given effect while a case is on direct review." citing United To determine whether a particular ruling should also extend to cases that were already final, Linkletter directed courts to "weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Employing that test, the Court concluded that the Mapp rule should not apply to convictions that had become final before Mapp was decided. The following Term, in the Court applied Linkletter's analysis to |
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